Petition for Writ of Certiorari — Board of Public Education, School District of Philadelphia v. Watson (No. 449)

EN. DHE

Supreme Court of the United States

October Term, 1960.

BOARD OF PUBLIC EDUCATION,

SCHOOL DISTRICT OF PHILADELPHIA.

GOi.DIE ‘WATSON.

PETITION FOR A WRIT OF CERTIORARI TO THE ..

SUPREME COURT OF PENNSYLVANIA.

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Watben & Ricavo,

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Seotember 2s. 2oga,

. INDEX.

Citations To Orinions Betow ............. Mee es

IO oe ear A eRe ee Ape eae hae

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......

seine thane eg tig Oe Re EET OLE ea

REASONS FoR GRANTING THE WRIT ............7.5........

satin, crams CEE SE CECE ERE OORT Tea

?

AppenpDIxX A-—CONSTITUTIONAL AND STATUTORY PROVISIONS

ad an ac EE ee ene Ee eA uh cara

Constitution, Amendment I ......... PN Aa ie? Gn

Constitution, Amendment XIV, Section 1 ...-..........

Pennsylvania Public ‘School Code we Weer, 8182?

APPENDIX B—Orrnions ces etn lt ER GEEE ERA Ae Rae aOR

Opinion of Superintendent of PubliceInstruction in Appeal

of Goldie Watson .:.....0.00..... ae ocatcas 5

Opinion of Superintendent of Public Instruction in Appeal

of Solomon Haas ...... a te) BN a

Opinion of Court of Common Pleas in Appeal of Goldie

~ Watson APARNA RENO E NORA SE CES K 5 RR Ao

Opinion of Court of Common Pleas in Appeal of Sadie

SM ene Te fa Meier ns ed oan, :

‘Dissenting Opinion of Justice-Musmanno ..........

Dissenting Opinion of Justice Eagen ..... SO APPS

6a

-

e

TABLE OF CASES CITED.

4 é ~~ Se.

bie State Bank v. Bryan, 282 U. S. 765 (1931) ............. 10°

dler v. Board of Education, 342 U.S. 485 (1952) ........ or a)

eilan v. Board of. Publie Education, School District of Phila-

Guetta, G57 VU. S. SOP (IGGBY: 5. i cicvnccnusvancscus 6,9

oard of Public Education, School. District of Philadelphia v.

Intille, Deacon and Atkinson, 401 Pa. 1,— A.2d—.... 5.6

nterprise Irrigation District v. Farmers Mutual Canal Co.,

GG |e 2 eidianecense 10

arner v. Board of Public Works of Los Angeles, 341 U. S.

PUT IEDY oss ddscss as Np oes OR . 8

erner v. Casey, 357 U.S. 468 (1958) 2.00.02. cece cee 6

elson et al. v. County of Los Angeles, 362 U. S. 1 (1960)

6, 8,9, 10

lochower v. Board of Higher Education of New York City,

Boe Bie Ge BOk CUVOR) oss keeces RU stan ress cients core

tate Tax Commission v. Van Cott, 306 U.S. 511 £1939) aoe 10.

STATUTES CITED.

Page

emnsylvania Public Sch: vl Code of IND, P. L. DB, Sec tion

Abas 24 Purdon’s Ta. Statutes Ann. Section 11- 1322. ree

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IN THE * :

Supreme Court of the United States.

OcToORER Term, 1960.

No.

BOARD OF PUBLIC EDUCATION:

SCHOOL DISTRICT OF PHILADELPHIA.

Petitioner,

. %

v.

GOLDIE WATSON,

Respondent,

‘ITION FOR A WRIT OF CERTIORARI TO. THE

SUPREME COURT OF PENNSYLVANIA. .

Board. of Public Education, School District of Phila-

hia prays that a Writ of Certiorari-issue to review the

ment of the Supréme Court of Pennsylvania entered in

ibove entitled case on June &0, 1960.

CITATIONS TO OPINIONS BELOW.

The opinion of the Superimendent of Public Instrue:

of Pennsylvania is unreported and is printed in Ap-

ix B hereto, infra, pp. 2a-2la. The opinion of the

t of Common Pleas of Philade Iphia County is unre-

d and is printed in. Appendix B hereto, infra; pp. 22a-

The opinion of the Supreme Court of Pennsylvania,

her with dissenting opinions, is reported in 401 Pa. 62,

A. 2d 60 and is printed in Appe ‘ndix B hereto, elra

Sa-Sta.

to”

Petition for a Writ of Certiorari

_ JURISDICTION.

The judgment of the Supreme Court of Pennsylvania

was entered on June 50, 1960.) The jurisdiction of this court

is invoked under 28 UL S.C. Seetion t257(3). The federal

constitutional saeslian of whether responde nt's dismissal

from employment violated the due process clause of the

Fourteenth Amendment was first raised by the respondent

tn the brief and argument on her appeal to’ the ¢ Court of

Common Pleas of Philadelphia County from the decision of

the Superintendent -of Public Instruction of Pe nusvivania.

The Court of Common Pleas determined the constitutjonal

question adversely @ respondent and in favor of the peti-

tioner, Responde nt- thereafter raised this constitutional

question in her brief and argument on her appeal to.the

Supreme Court of Pennsylvania and that court determined

the issue in favor of respondent, holding that her dismissal

from employment was jn violation of the due process clause

o! the Fourteenth Amendment. -

QUESTION PRESENTED.

1. Does the dismissal of a publie school teacher on the-

ground of incompetency for her conduet in refusing to an-

swer questions concerning her former subversive affiliations

in a public hearing before a Committee of the Congress of

the United States with a claim that: the Committee had no

right under the First Amendment to-ask her such questions,

violate the due process: clause of the Fourteenth Amend-

ment? Ks

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED.

The constitutional provisions involved are the First and

Fourteenth Amendments of the Constitution of the United

States. They aré printed in Appendix A, infra, p. la.

The statutory provision involved is Article XI, Seetion

1122 of the Publie School Code of Pennsylvania, Act ‘of

March 10, 1949, P. L. 30, 24 Purdon’s, Penna. Statutes Aun.

Section 11-1122. It is printed in Appendix A, infra, p. la.

Petition: for a Writ of Ce rlinvarié 3

STATEMENT. eae

The respondent was dismissed on June 20, 1954 from

*.e ¢ . :

position af a public school teacher in. Philadelphia, by

Board of Public Education of the School District. of

adelphia, following a public hearing before the Board.

Superintendent of Public Instruetion of the Common-

th affirmed her dismissal. On appesl to the Court of

mon Plea’ of Philadelphja. County, that eonrt affirmed

order of the Superintendent af Public Instruction. and

‘ld the dismissal. .

On further appeal, the Supreme Court of Pe nnsylvania

rsed the decision below and held that the dismissal of

andent Vv iol ited the due process clause of the F ourte enth

ndment,.

The ere had been employed as a teacher in the

adelphia publie school system in 1931. She appeared,

snant to subpoena, on February 17, 1954, before a Sub-

mittee of the Un-American Activities Committee of the

se of Representa: Ives, Congress of the U nited States,

Subcommittee was holding hearings to investigate the

nt of Communist infiltration in cducation.© At the time

respondent appeared, the Subcommittee was investigat-

the extent of Communist infiltration in the Philadelphia

lic school system. y

She gave the Subcommittee her name, address and a

mé of her schooling and employment record as a teacher,

was informed by counsel for the Commuttee that a Mrs.

othy Funn had testified before the Committee that she

known respondent as a member of the Communist Party.

pondent was then asked whether she had ever been wa

nber of the Communist Party. She refused'to answer the

stion, stating that she would not answer any ofher ques-

s about membership in organizations, associations, so-

ies, people she had met, or-anything-else, She specifically

ined to take advantage of the Fifth Amendment. When

#3 E ’

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© Petition for a Writ of Certiorari

e question was‘repeated by ‘counsel for the Committee.

spondent said that she would not answer it, and that it was

ngemye of her constitutional rights ‘for you to bring me

e and attempt to compel me to answer questions about my

aaubaee, memberships, conferenees, or speeches"

She was then asked the further question whether she

d ever attended a Communist schodl i in New York State

a school for instruction of Conimunist teachers. She.

ated, ‘*T will not answer’’, and “I refuse to answer’’. She

Is asked whether she had ever attended any Communist

struction school at any place. .She refused to answer,

ecifically -on the basis: of the First Amendment to the

mstitutiqn. :

She was asked the further qpestion as to whether she

is active in work with the National Negro: Congress, a

mmunist front organization, aid refused to answer, rely-

x specifically on the First Amendment.

She was informed by Congressman Scherer that she

ix in contempt of Congress. She said that she had )een

visedl by counsel of the risks and dangers of her position,

at she assumed these risks and dangers because the posi-

n was sacred to her, that.she held her rights sacred, and

uld not permit the Committee to compel her to violate

pm. %In response to the question as to whether she had

ken the Loyalty Oath, she stated that it was a matter of

blie reeord that she had taken it. The. final question asked

r was whether she was a member of the Communist’ Party

the time that she took the Loyalty Oath... She refused to

swer the question on- ‘the hasis of the First Amendment

. 17a).

Respondent was charged by the Board of Publie Educa-

n with incompetency, based on her refusal to answer the.

estions of the Congressional Committee and her conduct

fore the Committee, as showing a lack of professional

nesses to be a teacher. The charge was brought under the

nnsylvania Public School Code of 1949, P. L. 30, Section

22, 24 Purdon’s Pa. Statutes Ann. Séetion 11-1122.

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Petition for.a Writ of Cortionar? {. 2

Respondent was accorded aa hearing before the Board of

lie Eelucation on the charge, Was represented by counsel

1¢ hearing and testified in her defense that she believed

the Committee was ‘tan inquisition”.

After the hearing before the Board, the Board fourtd

the charge of incompetency Was sustained and ordered

respondent dismissed. The Supeérintendeut of Public

ruction of the Commonwealth and the Court of Common

is of Philadelphia County on further appeal, affirmed

order of dismissal.

The Supreme Court of Ponnsylvania reversed the deci-

and ordered the reinstatement, of the r@spendent im a

r-to-three decision. The court held that the reftisal to

wer a Congressional Committed was not a lawful ground

discharge of a professional employee on a charge of ie

ipeteney, under the authority of the decision af this Court

Slachower-v.. Board of Higher Education, 390 U.S. 591,

Seourt also held that the case was controlled by its deer

v handed down at the same time in the case of Board of.

blic Education, School District of Philadelphia v. Tntille ,

acon and Atkinson, 401 Pa. 1, — A. 2d ~- in Which it had

lered- reinstatement of three teachers who had been dis.

sed for refusal fo answer the Congressional Committee,

ipled with the claim of the privilege of the Fifth Ame nd-

nt. | er ie . :

This petitioner has also filed a petition for certiorar in

» eases of Intille, ef al.

6 - _ Petition’ for a Writ of Cerliorari

‘REASONS FOR GRANTING THE WRIT.

The decision of the Supreme Court of Pennsylvania in

the present ‘case and in Board. of Public Education, Schou!

Instrict of Philadelphia v. Intille, et al., 401 Pa. 1, — A. 2d

-, upon the authority of which the present case was decided,

misconstrue the effect of’ the decision of this Court in

Slochower v. Board of Higher Education af New York City,

350 U.S. 551 (1956). They are also inconsistent in principle

with the decisions of this Court in Lerner v. Casey, 357 U.S.

468 (1958), Beilan rv. Board of Public Education, Schou!

District of Philadelphia, 357 U. S. 399 (1958), and Nv/s;

etal. v. County of Los Anaqeles 262. S. 1 (1960).

In the Slochower case, this Court reversed the summary

dismissal of a teacher ina public college under-a New York

City Charter provision which made the act of claiming the

privilege against self-incrimination operate automatically

to dischargé the employee without hearing. This Court also

said (350 U.S. 558):

‘It, was one thing for the City authorities themselves

to inquire into Slochower’s fitness, but quite another for

his discharge to be based entirely on events cecurring

before a federal committee whose inquiry was an-

nounced as not directed at ‘the property, affairs, or

government of the « city, or . . .- official conduct of city’

employees’.’’

~ The Supreme Court of Pennsylvania relied on this state-

ment in the Slochowcr decision in coneluding that it was

unlawful for the Board of Public Education to discharge the

respondent for failure to answer a federal committee, bé-

cause the Committee was not charged with the duty of aseer-

taining the competency of Philadelphia school teachers,

In reaching this conclusion, the court ignored the force

ef this Court's decision in Nelson et al. v. County of Los

Angeles, 362 U.S. 1 (1960). In that case this Court upheld

Petition for a Writ of Certiorari

the dismissal of Globe, a civil service employee of Los

Angeles County, for refusal to answer the Subeommittee of

the Un-American Activities Committee of the Honse of

- Representatives, Congress of the United States. ‘The Court

specifically considered the contention of the employee that

the Slochower ease barred his dismissal. In distinguishing ~

Slochower, this Court said, 362 U.S. 6-8:

‘We, therefore, reach Globe’s contention that his

“summary discharge was nevertheless arbitrary and un-

reasonable. In this regard he places his relianee on

Slochower v. Board of Education, 350 U.S. 551 (1956).

However, the New York statute under which Slochower

was discharged specifically operated ‘to lischarge every

city employee who invokes the Fifth Amendment. In

practical effect the questions asked are taken as con-

fessed and made the basis of the discharge.” J). at 55s,

+» This ‘built-in’? inference of guilt, derived solely from a

Fifth Amendment claim, we held to be arbitrary and

unreasonable. But the test here, rather than being the

invocation of any constitutional privilege, is the faiture

of the employee to answer. California has “not jpredt-

eated discharge on any‘ built-in* inference of guilt in

its statute, but solely on employee insubordination for

failure to give information which we have heid that the

State has a legitinvate interest in securing. See Gorner

t. Board of Public Works of Las Angeles, SAL UL S. 716

(1951); Adler ve. Board of Education, 342 U.S. 485

(1952). Moreover it must be remembered that here—

unlike Slochower—the Board had specifically ordered

its employees to appear and answer. .

We conclude that the ease iseontrolled by Berlan er.

Roard of Education. of Philadelphia, 857 U.S. 399

(1958), and Lerner rv. Casey, B57 U.S. 468 (4058). 14

is not determinative that the interrogation here was by

a federal body rather than a state one, as it Was in those

eases. Globe had been ordered by his employer as well

ing

Petition for a Writ of Certiorari

as by California’s law to appear and answer questious

before the federal Subeommittee. These mandates made

no reference to Fifth Amendment privileges. If Globe

had simply refused, without: more, to answer the Sub-

committée’s questions, we think that under the prin-

ciples of Beilan and Lerner California could certainly

have discharged him. .The fact that he chose to place

his refusal on a Fifth Amendment claim puts the

matter in no different posture, for‘as in Lerner, supre,

at 477, California did not employ that claim as the basis

for drawf&g an inference of guilt. Nor do we think that

this discharge is vitiated by any deterrent effect. that

California’s law might have had on ¢ilobe’s exercise of

his federal claim of privilege. The State may nererthe-

less legitimately predicate discharge on refusal to que:

information touching on the field of security. See

-Grarner and Adler, supra, Likewise, we cannet say asa

matter of due process that the State's choice of securing

such information by means of testimony before a federal

body ean be denied. Finally, we do not believe that

California’s grounds for discharge constituted an arhj-

trary classification. See Lerner, id.. at 478. We con-

clude that the erder of the Cour ty Board was not invalid

under the Due Process Clause of the Fourtee nth Amend-

ment.” (Emphasis added.) |

The absence of a specific statute in Pennsylvania direct:

teachers. or ether public employees to answer such

question of a Congressional Committee does not ces tugs

distinguish the present ease from Nelson, et al. . County

of Los Angeles. It is patent that the Board of Public oe

cation, as the employer of the respondent was vitally i

te: osted in the information which the Congressional pe

mittes was secking of the respondent in its investigation of

the extent of Communist infiltration in the Philadelphia

publie school system, and which was important to the em- —

Petition for a Writ of Certierari 9,

yvee's fitness. See: Garner. v. Board of Public Works of

8 Angeles, 341 U.S. 716 (1951); Adler ve. Board of Edu-

fea 342 U.S. 485 (1952). No specific statute is required

authorize the public employer to obtain information as

a teacher's former’ Communist connections. .

Beilan v. Board of Pubhe Edy ation, School Dis-

trict of Philadelphia, 857 U.S. 399 (1998).

In concluding that the Board’s dismissal of respondent

Hated the due process requirement of the Fourteenth

nendment, the Supreme Court of Pennsylvania ignored

t only the principle of law ennneiated by this court in

lson, ef al. ve. County of Los Angeles, but also the fact

it respondent was dismissed on the basis of a. factual

wing that her conduct before the Congressional Com-+

ttee manifested an attitude of ‘settled contempt, a

tant disrespect and an arfogant disregard for a duly

istituted) congressional committee and the important:

netions it sought to perform” ,as stated in the dissenting:

inion of Justice Hagen in the court below (infra, pp.

1-642).

The Court ignored these facts, apparently because it

id the view that the Sloct@irer. case forbade dismissal of

employee for refusal to answer a federal committee,

rardless of the nature of-the conduct or attitude which

» respondent manifested before the Committee. The

(jority relied in its opinion on the fact that the respondent

d invoked the Constitution of the United States in justi-

ition of her stand. Surely, however, an invocation of

» Constitution does not prevent’ inquiry by the public em-

ver into the employee's conduct which accompanied her

liance on the Constitution.

It is further submitted that there was no adequate inde-

ident non-federal ground for the decision of the court

low. The Pennsylvania Supreme Court also stated in its

inion that the refusal of the respondent to, answer the

estions of the federal Committee did not constitute in-

10 ‘ . Petition for a Writ of Certiorari

competency within the meaning of the Pcansylvania Schoo!

Code. While this may appear superficially to be a non-

federal basis fer decision, it is apparent on closer examina-

tion that this conclusion was not predicated on state law

and was not an independent basis of decision. It was in-

extricably interwoven with the federal constitutional ques-

tions which the court below considered at length in holding :

expressly that the dismissal violated fhe respondent’s eon. ;

stitutional rights. In such eases this Court has clear. juris-

diction. |

State Tass Commisston «=. Van Cott, 306 U.S.

51i (1939);

Abie State Bank v. Bryan, 282 U. S.. 765, 773

(1931);

Enterprise Irrigation District rv. Farmers Mic

tual Canal Co,, 248 U.S. 157, 164 (1917).

The Court's conclusion relating to incompeteney rested

upon the same interpretation of constitutional law which it

made in considering the due process questions raised wider

the Fourteenth Amendment.. The Court assumed, contrary >

tw this Court’s decision in Nelson, et al. cv. County of Laos

Anacles, that a state employee can not be dismissed for

refusal to answey the questions of a tederal committee

whenever the employee asserts a constitutional right as the

basis of refusal to answer. The Court further assumed that

when a public employee has refused to answer a Congres:

sional Committee with an assertion of constitutional right,

the émplover is precluded from considering the improper.

disrespectful and defiant behavior of the employee aut the

time of refusal to answer.

It is poiated out particularly in the dissenting opinions

in the Supreme Court of Pennsylvania, that the respondent

was dismissed, not for a mere refusal to answer, but for.

defiant and insolent conduct in ‘refusing to answer

The question presented is of substantial lapertaice to

the States and their cities, school districts atid other sub-

Petition for a Writ of Certiorart 11:

livisions. The decision of the Pennsylvania Supreme Court

uuthily restricts the authority of a public employer over its

employees, prevents an employer from taking disciplinary

wtion against employees who refuse to answer questions of

levislative committees and inhibits employers in evaluating

the fitness of employees to serve and to teach children on

the basis of their behavior when ealled to testify before ¢

Committee of Congress. The decision, if it is not eae

and reversed, applies the Fourteenth Amendment in a

way in which this court has not heretofore approved its

application, with drastic effect of the power of states and

political subdivisions,

CONCLUSION.

For the foregoing reasons this petition for a writ: of

eertiorart should be granted.

Respectfully submitted,

Brewster Rioaps,

1421 Chestnut Street,

Philadelphia 2, Pa.,

Attorney for Petitioner,

Epwarp B. SoKEN,

YIst St..and the Parkway.

‘Philadelphia, Pa.,

Sipney Le: Wick ENUAVER,

Moxtcomery, MeCrackes, Waker

& Ritoaps,

Of Counsel,

September 28, 1960.

| APPENDIX A. |

CONSTITUTIONAL AND STATUTORY PROVISIONS.

Constitution, Amendment 1.

“Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to ‘assemble,

and to petition the Government for a redress of griev-

anees.””

Constitution, Amendment XIV, Seetion 1.

. ‘ALL persons born or naturalized in the United

States, and subjeet to the jurisdiction thereof, are citi-

vons of the United States and of, the State wherein they

reside, No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, Liberty, or property, without due process

of law; nor deny to any, person’ within its jurisdiction

the equal protection of the laws.’”’

Pennsylvania Public School Code of 1949, March 10, P. L.

30, art. XI, ¢ 1122, as’ amended.

“oCanses for termination of contract

The only valid causes for termination of a con-

tract heretofore or hereatter entered into with a pro-

fessional employe shall be immorality, incompetency,

intemperance, cruelty, persistent negligence, mental

derangement, . 5: persistent and wilful violation of

the school laws of this Commonwealth on the part of

the professional employe : sie mee

(1a)

2a Watson Opinion (Super. of Public Inst.)

APPENDIX B.

» OPINIONS BELOW.

Commonwealth of Pennsylvania

DEPARTMENT OF PUBLIC INSTRUCTION

Harrisburg

.

EE

Appeal of Goldie Watson, a) In the Office of the Super-

Professional Employe, from] intendent of Publie In-,

a Decision of the Board of | struction, Commonwealth of |

Public Edueation of the ‘Pennsylvania, at Harrisburg,

School District of the City of | Pennsylvania

Philade ‘phia,” Pennsylvania. jNo. 111

January 17, 1955

Opinion

GBidie Watson has appealed her dismissal from employ-

ment as a professional employe in the School District of the

City of Philadelphia. tn accordance with Section 1122 of

the dog! School Code of 1949, the Act of March 10, 1949,

P. L. 30, the’ Board of Public Education of Philadelphia

Acund 7 rs. Watson with ineompetency and persistent and

‘wilful violation of the school laws of the Commonwealth.

For the reasons specified in our opinion in‘the case of

Solomon Haas, (Opinion No. %), dated November 18, 1954)

we hold that the action of the Boird of Publie Education of

the School District of the City of Philadelphia in dismissing

Goldie Watson, the appellant, was proper. A copy of the

Opinion in the case of Solomon Haas, referred to above, is _

attached hereto.and made a part hereof.

This appeal is therefore dismissed and ‘the following

order entered. .

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Fixpixes or Facer

1. Appellant is a professional employe “in the School

trict of the City of Philadelphia:

2. On February 17, 1954, appellant was called before

sub-committee of the House of Representatives of the

igress of the United States Investigating Un-American

ivities, and asked certain questions dealing with her

ty to the Government of the United States. Ajppellant

ised to answer these questions, invoking the Fifth

endment to the Federal Conséitution as the basis of her

isal.

3. On February 19, 1954, appellant was rated ‘*unsatis-

ory’? asa professional employe, by Dr. Louis P. Hoyer,

rintendent of Schools of Philadelphia.

4. Dr. Louis. P. Hoyer, Superintendent of Schools or

ladelphia, sent appellant a detailed letter informing her.

| she was rated ‘tunsatisfactory’’ as a result of her re-

tl to answer questions presented by the sub-committee of

House of Representatives of the Congress of the United

tes Investigating Un-American Activities.

5. On March 9, 1954, the Board ef Publie Education

ferred charges against the appellant on the grounds of

mmpetency and persistent and wilful violation of the

vot laws of this Commonwealth, and after sending her a

ement of charges, condieted a hearing in the matter ou

we 4, 1954.

6. Asa result of such hearing the Board of Public Edu-

on determined on June 29, 1954, that the appellant be

nissed. ks ae

7. From the action of the Board of Publie Education

appeal was filed with the Superintendent of Public In-

ition on July 8, 1954.

8. No additional testimony was taken before the Super-

ndent of Public Instruction.

te

ta Watson Opinion (Super. of Public Inst.)

Conciusions or Law

1. The notice given to appellant of her uns: itisfactory

rating was a sufficient compliance with the law,

2. Neither, Section 1123 nor Section 1125 of the Publie

-School Code- of 1949, assamended, de: ing with the matter of

rating professional emploves, requires that a copy of the

actual rating card used in the rating of a professional em-

ploye, be forwarded tothe professivnal employe when the

rating is made. The official rating eaird of the Department

of Public Instruction is but a euide in determining the rating

of a professional employe. The forwarding of a detailed

written statement of the unsatist: ictory rating Was a suffi- .

cient — with the law.:

The rating ef professional employes, which is the

a the diseretion and the duty of superintendents of

schools, is not limited to classroom performance,

4. A superintendent of schools is within his legal au-

thority in asking proper questions of professional emplayes

in the employ of his district, which questions relate to the

fitness of such employes to continue to serve as teachers in

the pa of the school district.

. The ** Pennsylvania Loyalty Act,’ the Act of Decem-

ber 29 1991, P.L. 1726, in no way insulates a-protessional

einploye from bemg asked questions as to his loyaltyy and

said Act is not involved in the present proceeding.

6. A superintendent’ of schools is justified in rating a

professional employe *‘unsatis factory!’ when such employe

refuses to answer proper questions relating to her loyalty

asked of her by the supe rinte ‘indent of schools.

The refusal to answer, referred to in conclusion No.

6 maa, constitutes ‘*inecompetency.”’

(8. The refusal ‘to answer, referred to in conclusion No. 6

herein, constitutes ‘‘persistent: and wilful violation of. the

school laws of this Commonwealth.’

@

Watson Opinion (Super. of Public Inst.) da

3. A superintendent of se

hools is justified in rating a

rofessional employe *unsati

sfactory’’ when’ such profes.

onal employe refuses to answer questions put to‘her by a

ib-committee of the House of Representatives of the Con-

‘ess of the United’ States and invokes the Fifth Amend-

ent to the Federal Constitution on the ground that truthtul

iswers thereto would tend to incriminate her,

ADJUDICATION AND ORDER

And now, this seventeenth day of January, 1955, after

uring and argument and after reviewing all the testimony

“door taken in the hearing, the appeal of Goldie Wiitson

ma decision of the Board of Public Edueation of the

hool District of the City of Philadelphia, Pennsylvania,

eging that the Board of Public’ iducation improperly

missed her as.a professional employe, is hereby dismissed

| the action of the Board of Publie Edueation is affirmed,

By Francis B. Haas, :

Superintendent of Public Instruction.

6a Haas Opinion (Super. of Public Inst.)

Commonwealth of Pennsylvania

DerantTMENT oF Pusniic [NstructTion

Harrisburg ;

eo

Appeal of Solomon Haas, a} In the Office of the Superin-

Professional Kmploye, from} tendent of Pubjie Instrue-

‘a Decision of the Board of | tion, Commonwealth — Gt

Public Edueation of the f Pennsylvania, at Harris.

School District of the City of | burg, Pennsylvania

Philadelphia, Pennsylvania } No. 90

November 18, 1954

OPINION

Solomon Ilaas has appealed his d’smissal from employ-

ment as a professional employe in the City of Philadelphia.

In accordance with Seetion 1122 of the Publie Sehool Code

of 1949, the Act of March 10, 1949, P. LL. 30, the Board of

Public Education of Philadelphia (hereinafter called the

Board), charged Haas with incompeteney and persistent

and wilful violation of the school laws of the Commonwealth.

The reeord. reveals that on June 26, 1952, appellant,

during an interview with Dr. Louis P. Hoyer, Superin-

tendent of Schools, refused to-answer certain questions as

to his loyalty. Haas stated that he wished to consult coun-

sel. At a second mecting, on October 14, 1952, appellant,

having consulted counsel, again refused to answer questions

relating to loyalty. He had taken the Loyalty Oath,’ and

his position was that this oath ‘‘took care of everything

before that time.’’ Appellant further stated that ‘the did

not propose to have here what happened in Germany.’

1The Act of December 22, 1951, PLL. 1726, 65 PLS Section 211 et seq

Hlaas Opinion (Nape r. of Publi Tust.) Za

Thereafter, in November, 1953, a sub-committee of the

louse Committee on Un-American Activities anet in Phila-

elphia for the purpose of inv estigating communist aeiivi-

ex in that city. Appettapi, in res poise to it subper tat, ap-

eared before the sub enim tee on Nevember Ps, tos,

Ie stated that at that time he was net a member of the

‘onpuunist Party. Howeter, when asked whether he hae

ver been a member, he refused to answer on the ground of

he Fifth Amendment to the Constitution of the United

tates. The appell int was asked other questions by counsel

or the sub-committee, relating to meribership in the party

nd various communist front organ izations, as well at at-

endanee at meetings and picket Hines. Tn each instance,

laas invoked the Fifth Amendment.

4 On the basis of Hacts* refusal to answer questions relat-

ny to loyalty asked by Dr. Hoyer on dune: Ye, 192 and Oeto-

ver 14, 7952, and his refusal to an wer questions dealing -

vith lovalty before the sub-committee apon recommendation

vy Dr. Hover, the Board, on November 24, 1953, preferred

he charges against Haas to which reference has heretofore

wen made, Appellant received a statement of the charges,

ind on December 19, 1053, he was given a hearing before the

Board. Thereafter, the Board found that the charges had

wen proved and, on January 7, 1854, Selomen Haas was

lismissed. This appeal followed.

The important question presented for our determina

ion is whether appellant's refusals, on the three occasions

nentioned, t6 answer questions relating te loyalty, canst

ute incompeterey and persistent and wilful viel: ion of the

school laws. "TRie, of course, Invely es a cons sideration of the

authority of Dr. Hoyer. ta ‘ask the questions, and the effect

of invoking the Fifth Amendment before a sub-committee

of the Congress of the United States,

It. was settled in Pefinsylvania ‘by the case of Abert

Appeal, 372 Pa. 15 (1952), that a communist or any person

who advocates or pRUrLICLp ait es in subversive doctrines ean-

net teach in the. public school system. Mr. € hief Justice

°

Ra ~ Haas Opinion (Super. of Public Inst.)

Stern, speaking’ for the Supreme Court, there said, a

page 19; - .

. **. . : In short, it is essential, in order to protec

our children from treacherous influences, that person

who advocate .or participate in subversive doctrine,

should not be employed, or if employed should not |:

retained, as teachers: in our publie schools, and any

teacher dismissed for such a reason cannot ‘proper|

claim that any constitutional or legal right is therety

violated.”’

See dso, the Act of December 21, 1951, P. L. 1712, 18 P.S

Section 3811, ; ’ |

To carry out the mandate of Article 10, Section 1 of the

PonnsyIvania Coristitution that there be maintained »

‘thorough and efficient system of public schools,"? the ap

pointment of superintendents is provided for in the public

school system. The duties of such individuals include the

determination of the fitness of the professional employes.

See Section 1125 of ‘the Public School Code ‘of 1949, as

amended by the Act of August 10, 1991, P. L. 1157, Seetion

1, 24 P.S. Seetion 11-1123 (P. P.).

As soon as Dr. Hover, as District Superintendent, came

inty possession of information concerning the loyalty of ap-

pellant, it was in our judgment his right, indeed, tis solemn

duty to inquire of appellant as to the truth or falsity of this

information. Beeause of the important nature of this in

formation, Dr. Hover chose to make the necessary inquiry

himself. If appellant had cooperated and it was determine!

the information was false, it: would then have been Dr.

Hoyer’s duty to protéet this teacher from false accusation.

Appellant, however, refused. to cooperate and instead be-

came insubordinate in that ‘‘he did not propose to have here:

What happened in Germany.”? .

The fact that appellant took the Loyalty Oath in no way

insulates him from inquiry relative to ‘past conduct. Dy.

Hoyer apparently possessed information relating to past

Haas Opinion (Super, ef Public Insti Ya

subversive activity or agsociation with subversive organiza-

tions by appellant. Assuming that such information was

true, and assuniing further that appellant's participation in

subversive activities continued at least until the day of the

oath, it is obvious that the inquiry as to past activity and

association is relevant to determine if the activity or asso-

ciation has stopped and, if so, when and under what ‘cir-

cumstances,

The Supreme Court of the United States, ima similar

situation, has said:

“We think that a municipal employer is not dis-

abled beeause it is an agency of the State from: inquir-

ing of its employees as to matters that may prove

relevant to’ their fitness and suitability: for the public

service, Past conduct may well relate to present. fit-

ness: past doyalty may have a reasonable relationship

to present and future trast. Both are commonly in-

quired into in determining fitness for beth high ayd low

positions in private industry and are not less relevant

in public employment, (Garner v. Board. of

Public Works of Los Angeles, O41 US. 716 (T90T))

a4

Tt has been held repeated|y that the term ‘tincom-

peteney,’? as used in the Publie School Code, ix not Limited

to classroom performance alone: Heroshke oe. Mf, Phew aut

Tiep. School District ef al. O35 Pa. 300; Brow "s Case, 101

Pa. Superior Ct. S22: and West Mahanew Tip. School Dist,

ty Aelly, 156 Pa, Superior Ct, 601,

It is our opinion that the settled contempt of Solomon

Haas for the authority of the, Superintendent of Schools

seriously refleets upon his qualifications as a teacher. We,

folly agree with the sentiments of Dr. Hoyer contained in

the testimony before the Board ,of Public Education as a

reason for the unsatisfactory rating given to Haas:

~The question of competeney of a teacher has

. many implications. Of course, there is the question of

%*

10a Haas Opinion (Super. of. Public Inst.):

his technical skill in handling-the work in the classroom.

But there are a great many other matters that have to

deal with personality, character, that are as lmportant

in some respeets, 1 think even more important, than

technical skill on the part of a teacher.

‘*T felt that in this instance Mr. Haas did net sho

the -frankness, the candor, the kind of intellectual

honesty that I think a teacher is bound to show in con-

nection with his work. This Was true on both oceasion~

when he came into my office. .

The influence of a teacher in ‘the classroom is per

haps greatest through the foree of hiv exar <a, inich

the kind of person that he appears-to th hildren to

he. And when we are dealing in an area that is as

extensive as the area of-a classroom, these matters as.

sume tremendous importance. T[ therefore feel that 2

teacher who cannot deal with his professional superior

on a basis of candor and frankness has a very serious

defect in his qualifications as a teacher and I, therefore,

consider iim incompetent to be a teacher.

Since the questions which Dr. Hoyer desired to ask

appellant related to his lovalty, his position is in aceord

with that adopted by the Supreme Court of the United

States in the case of Adier v. Board of Education of thi

City of New York, 342 U.S. 485, wherein it was said at

page 493:

.o. 2 A teacher works in a sensitive area in a

schoclroom. There: he shapes the attitude of young

minds towards the society in which they live. In this,

the state has a vital concern. It must preserve the. in-

terity of the schools. That the school authorities have

the right and the duty to screen the officials, teachers,

and employees as to their fitness to maintain the’ in-

tegrity of the schools as a part of ordered.society, can

.

Haas Opmion (Super, of Public lust.) lla

not be doubted. One's associates, past and present, as

well as one’s conduct, may properly be considered in

determining fitness and loyalty. . From time im-

memorial, one’s reputation has been determined in part

by the company he keeps. In the employment of offi-

clals and teachers of the school system, the state may

very properly inquire into the company they keep, and

we know of no rule, constitutiMhal or otherwise, that

prevents the state, when determining the fitness and

lovalty of such persons, from considering the organiza-

tions and persons with whom they asscciate.”’

Under the circumstances, we find that Thaas* condnuet

before the Superintendent on tWo vecasions cotstitutes in

competency within the meaning of the Public School Code.

Ct. Aadbridae Borough School District vo Snyder, 3&6 Pa-

Ws and Ganaposkt’s Case, 352 Pa. 105.

Appellant has raised the question whether he was siven

notice of the unsatisfactory rating in complianee with the

Tenure Law, in that he did not receive a copy of the rating

eard: :

We interpret Seetions 1123 and 1125 of Public Schoo!

Code of 1949 to require only that a copy of the rating or

results of the computation be sent to the employe. A copy

of the rating card need not be forwarded to the employe. in

“this particular ease, the detailed letter which Dr. Hoyer

sent to the employe, setting forth his, reasons for the wun-

‘ Natisfactory rating, was much more informative than would

have been a copy of the rating card itself. Sinee the pur:

pose of the law is obviously to inform the teacher that an

unsatisfactory rating has been placed on record against him,

the Board of Publie Education; in this case, has complied

with the rating procedure prescribed by the Code. See

Maulhollen Appeal, 155 Pa. Superior Ct. ost.

We also sustain the finding of the Board of Public

-Edueation that: Haas* conduct constituted persistent. and

wilful violation of the school laws of the Commonwealth.

12a Haas Opinion (Super. of Public Inst.)

Appellant clearly indicated that under no circumstances

would he answer the questions put to -him by Dr. Hoyer

cither then, or at any future time. Since we firmly believe

that the school laws imposed a duty upon appellant to an-

swer these questions, it follows that his repeated refusal to

do so constitutes persistent and wilful violation.

Even if the interviews with Dr. Hover had never taken

place, we believe another and most compelling reason exists

for sustaining the dismissal of this employe—his refusal to

answer questions propounded by a duly constituted sub-

committee of the Congress of the United States. .

The astonishing argument is made in appellant's brief:

that he **by his own violation did not flaunt his conduct be-

_tore the publie.’* The committee is blamed for appellant's

plight in that it ealled for his testimony in publie session

and thus caused appellant to refuse te answer. Such an

argument is preposterous. The simple facts are that ap-

pellant was asked by a lawful body, questions based upon

sworn festimony which, if true, seriously reflect upon ap-

pellant’s responsibilities, not only as a teacher but as. a.

citizen, Appellant refused to answer: these questions be-

eause a truthful answer thereto might: tend to incriminate

him. At the hearing before the Board he reaffirmed this

position. ee

No one disputes appellant’s right under the United

States Constitution to invoke the Fifth Amendment and

refuse to testify as to possible communistie affitiations

However, when a public school teacher pulls down this cloak

of immunity, in our judgment his employer would be most

remiss in his obligation to American children and their

parents if he did not at once remove such teacher from the

classroom. Wé are not swayed by arguments that no sane.

tion should attach to the teacher who so deports himself.

By all the concepts of logic and reason the teacher admits

that he has done something for which he might be prose-

cuted criminally. We repeat, this appellant admitted at the

* Se

Haas Opinion (Super, of Publict Inst.) oa

hearing before’ the Board that a truthful answer to the

committees question would ineriminate him?

It is fundamental that while a person has a constitu.

tional right to refuse to testify, such person does not have

aright to public employment as a school teacher, policeman

or in any other capacity. An exercise of the right may

protect aperson from criminal progeention, but it dees not

prevent the revocation of a privilege hy the State in the

exercise of its police power.to protect the schools from: pol-

lution and thereby to defend its oWn existence: Adler rv.

Board of Education of the City of New York, supra.

The courts have frequently considered the question of

the relationship of the Fifth Amendment to public employ-°

ment. Justice Holmes once said on this point:

0. The petitioner may have a constitutional

right to talk polities, but he has no constitutional right

to be a policeman. There are few employments for

hire in which the servant does not agree to suspend his

constitutional rights of free speech as well as of idle-

‘ness by the implied terms of his contract. oa

(MeAnuliffe vo Mayor of the. City of New Bedford, 155

Mass. 216, 29 N. BE. 517-518).

In Scholl v. Bell, 125 Ky. 750, 102 S: W., 248, 261-262,

the following very pertinent observations are made:

‘The testimony shows many outrages and crimes

done by the police, and vet, when these men were placed

“Mr. Rhoads: Would the stenographer repeat that question. To want ne

eqivecation from you on that, Mr. Haas. ;

“The question was repeated by the stenographer as follows: And. did you,

then vou took the benefit ot the Firth Amendment on November 18, 1933,

etore the House Un-American Activities Cominitte in’ Philadelphia, believe

that i vou answered truthtully the questions which were presented to you by

that Committee, that vour answers would incrtminate you?)

“The Witness: The answer is yes. However, IT should like to add the

following: First, here is a very serious question of the use of the First

\raendment, even though [To used the Fitth Amendment. There is the right

te tree association. | don't recall exactly what the amendment is) pertaining

to the ability to read different types of material so as to make up and formulate

a broad picture of a situation which ts necessary as a teacher. I Belreve it is

the First Amendment. . . ." (N. T. 82), .

I+a

A

Haas Opinion (Super. of Public Inst.)

on the witness stand and interrogated as to what they

knew, they invariably sheltered under the law forbid.

ding self-incrimination; and, when the question as fo

whether the witness should or should not be compelled

to answer was certified to the chancellors, the witnesses

were always protected by the ruling. Assunjing the

ruling to be correct, the conclusion which seems fo have

been drawn as to the innocence of the ofhcers is not

justified. The principle under discussion is a rule of

evidence, to protect the witness from criminal proscen.

tion or public exposure to shame peeause of his own

testimony. It is a rule of necessity, bevond whieh jt

should not be extended. Its use shonld not be eon-

sidered as affording the witness a certificate of good

character. Here were police offic rs being interrogated

as to existence of crimes they Were paid te prevent, if

possible; if not, to expose and punish afterwards. and

‘yet they one and all refused to answer ‘under advice.

°

of counsel. Suppose a secret murder, had been eo.

initted, and the police on that beat, when asked abont

it, should say, ‘I decline to answer for fear of inerim.

inating myself.” This, under the rule invoked, world

protect the witness from answering; but how. lonir

would it justify his retention on the roll of the police?

What would be thought of those who left the public

safety in his hands longer than it would require to dis

charge him? Suppose « bank had been robbed. and

the bookkeeper, the teller, and cashier, when interre

guted, should say, ‘I decline to answer under advices

ef counsel.’ What would be thought of a choard of

directors who would afterwards leave the bank in th:

hands of such men? This ‘is precisely the situation

here. _ Peace officers, whose duty. it was to prevent and

expose crime, when called on to do so, sheltered under

the rule against self-inerimination: and vet these men

still wear the official. uniform, still draw salaries fh on

Haas Opmion (Super. of Public Inst.) lda

the publie purse, and this is made possible only by the

i. . . ‘a: .

eonsent of these who are the’apparent beneficiaries of

their silence’?

The same general proposition of the failufe of a pub-

eomploye t6 answer questions was considered by the Su-

reme Court of Pennsylvania, as it applies to police men,

i the ease of Sewler v. Philadelphia et al. 305 Pa. 1, 156

ah 245, wherein a policeman haik failed to answer ques

ons. The Court there said at page 6:

0 Ttowas essential in the proper discharge of

his duties that he should comport himself as an officer

in such manner that no wctot w rongdoitie should attach

itself to him, to the end that those who served under

him should feel for Lim that respeet which insures con-

fidence aml Gbhedience. As such an officer, in such a sta

tion he should have been keen to see that no taint of

evil doing attached itself to him and when Charges were

made, reflecting upon his honesty and integrity, that

they were met with denial and answering proofs of no

dolinquencies. He should have cheld himself above

‘suspicion. Instead of so doing, when charges of the

gravest nature were brought against him by the grand

inquest of the county, he answered before them Ina way

not to establish his freedom from wrong by full ex-

planation, but in a qaanner ‘raleulated to contirm his

complicity in erime, and, when summoned by his su-

perior on speeifie charges before the tribunal charged

by the law with the duty of, inquiring into them, he an-

-wered not at all. This in itself was conduct unbeeom-

9%»

ing an officer.

In a very recent ease, Parone. School Committee of

Boston, 120 N. EB. 2d 772, the Supreme Court of Massachn-

etts sustained the dismissal of a teacher upon grotinds

dentieal with those: here presented. It was there said at

mage Ti4:

l6a

Haas. Opinion (Super. of Public Inst.)

‘**. . . We do not believe that dismissal of a

teacher for pleading self incrimination before a Senat:

committee when asked about affiliation with the Com:

munist Party can be held by the courts to be arbitrary,

irrational, unreasonable, or irrelevant to the task of

the school committee. The r responsibility for determin

ing grounds for dismissal rests primarily with the.

school committee and not with the court. Refusal to

testify does not prove guilt and no inference of guilt

can be drawn from it in a criminal ease. In re Opinion

of the Justices, 300 Mass. 620, 15 N. E. 2d 662. But the

question here is not one of guilt or innocence. It is 2

question of administration by a public board in the pub-

lic interest. Neither the school committee nor the court

eXists Ina vacuum. Neither can profess ignorance of

the currents of opinion which sway great masses of the

people. It cannot be doubted that nealtitudes of people

in this community regard with abhorrence the Com-

munist Party and eommanism as that term is generally

understood. It is not for this court to say why this is

so or Whether this feeling has gone too far or not far.

enough.. It is sufficient for us.that the feeling exists.

Nothing the court can do or say will prevent the public

from drawing its own inferences from refusals to tes-

tify. It is apparent that a school teacher has extensive

. and peculiar opportunity to impress his attitude and

Views upon pupils in his charge. It was the petitioner's

statutory. duty to impress upon them ‘love of their

country.’* . . .’Yet some of the questions which the |

petitioner declined to answer bore directly upon the

recruiting of students for communism. The school com-

mittee could find that a great many parents and others

would be seriously disturbed if the: petitioner were

allowed to continue teaching, and that this would under-

mine public confilense and -re act unfay orably upon the

3Ct., Sections 15 1 pat 1s 1s ot the Public Si ‘anal Code ot 1949. a

Sect

ons 15-1311 and 15-f£45,

Haas Opinion (Super. of Public Inst.) lva

school system. Considering the position of the peti-

tioner entirely apart from any question ef fault on his

part and as if he had merely suffered some, misfortune,

such as a terribly disfiguring personal injury, the best

interests of the schools are paramount, and we cannot

say that the school committee exceeded its powers.”

(Emphasis supplied)

Much has been written concerning the lack of civie re-

sponsibility eu the part of a teacher who invokes the Fifth

Amendnfent. See Hook, ‘* The Fifth Amendment—A Moral

ixssue,’’ New York Times Magazine, November 1, 1953;

Reutter, ‘*’ Phe Sehool Administrator and Subversive Ac-

Hivities,”” Columbia University, New York, 1951, but we will

confine our comments by quoting fom the case of Tutele v.

flomr, SSD. & ©. ole (Philadelphia County), which in

volved a teacher who was suspended for the same reasorts

as appellant. The court there said at pages 913-010:

Plaintif® was suspended on the ground that she

had shown a lack of fitness to be a teacher in displaying

- conduct unbeconfing her professional status in that she

had failed to answer questions Which in good CONSCIENCE

she should have been willing to answer eandidly as to

any affiliation with subversive organizations.

“Since this ground is not enumerated iIn.the see-

tion of the statute setdorth above, plaintiff concludes

that the suspension is improper and therefore wicrits

the intervention of this court.

“But the act does not lend itself to the tortured

eonstruction advanced by plaintiff. Because a teacher

passes certain qualifying grades, she is not auto-

matically so secure in her position that if she commits

some act detrimental to society or tothe children placed

in her charge, the superintendent of xchools is power-

a eek: cael

et ;

18a - Haas Opinion (Super. of Public Inst.)

less to dismiss the teacher pending a final hearing by

the board of education.

«& * * ¥ e * 3

**( ‘ertain[y the refusal of plaintiff tor answer ques

tions of a duly constituted committee ofour C Ongress

is adreadful example for a teacher to set for her pupils.

Whether plaintiff is a subversive or not, such wretched

conduct before a committee of the highest legislative

» branch of our Republic, ean only foster in the impres-

sionable children under her tutelage, a, settled contempt

and arrogance for our country and its lawmakers.’’ ~.

Appellant's conduet before the sub-committee of the

House of Representatives of the Congress of. the United

States Investigating Un-American Activities, fully justifies

the finding of incompetency by the Board of Public

EXdueation. :

For the foregoing reasons we hold that the action of

the Board of Public Education of the School Distriet of the

City of Philadelphia, in dismissing appellant was proper.

This appeal is therefore dismissed and the following order

entered. :

‘Fixpincs or Fact

1. Appellant is a professional employe in the Seéhool °

District of the City of Philadelphia.

Appellant on June 26, 1952, was called. for a per

sonal interview by Dr. Louis P. Hoyer, Superintendent of

Schools, and informed that Doctor Hoyer wished’ to ask him

some questions having an important bearing on his loyalty.

At that time, dppellant stated that, he refused to answer the

sti and wished to seck the advice of. legal counsel.

. On October 14, 1952, appellant was again calle dl be-

fae: Doctor Hoyer for questioning and stated: that upon

“advice of legal counsel he refused to answer Doctor Hoyer’ s

questions.

Ilaas Opinion (Super. of Public Inst.) 19a

4. On November 18, 1953, appellant was called before

sub-committee of the House of Representatives of the

gress of the United States Investigating Un-American

vities, and asked certain questions dealing with his loy-

to the Government of the United States. Appellant

ised to ‘answer these questions, invoking the Fifth

endment to the Federal Constitution as the basis of his

sal.

5. On November 20, 1953, appellant w: s rated ‘unsat-

a as a professional employe, by Dr. Louis P.

r, Superintendent of Schools of Philadelphia.

. On November 24, 1953, Dr. Louis P. Hover, Supe rin-

en of Schools of Philadelphia, sent Appe ‘Hant a detailed

or informing him that he was rated"** unsatisfactory” as

sult of his refusal to answer questions presented by him

by the sub-committee of the Tfouse of Representatives

the Congress of the United States Investigating Un-

eriean Activities.

7. On November 25, 1953, the Board of Public Eduea-

) preferred charges against the appellant on the grounds

neompeteney and persistent and wilful yielation of the

ool Laws of this Commonwealth, and aiter sending him

latement of charges, conducted a hearing in the mattter

December 19, 1953.

Asa result of such hearing the Board of Publie Hadlu-.

ion determined on Jannary 7, 1954, that the appellant

dismissed, we

From the action of the Board ‘of Public ERdneation,

appeal was filed with the Superintendent of Publi Tn:

netion on February 4, 1994.

10. No additional testimony was taken before the

verintendent of Public Instruction.

20a Haas Opinion (Super. of Public Inst.) .

Conciusioxs or Law

1. The notice given to appellant of his wnsatisfactory

rating was a snflicient compliance with the law.

2. Neither Section 1123 nor Seetion 1125 of the Public

School Code of 1949, as amended, dealing .with the matter

of rating professional employes, requires that a copy of the

actual rating card used in the rating of a professional om.

ploye, be forwarded to the professional employe when the

rating is nade. The official rating card of the Department

of Public Instruction is but a guide in détermining the rat-

ing Of a professional employe. The forwarding of a de-

tailed written statement of the unsatisfactory rating was

‘a sufficient compliance with the law.

3. The rating’ of professional: employes, which is the

right, the diseretion and the duty of superintendents of:

schools, is not limited to classroom performance,

4. A superintendent ot schools is within his legal an-

thority in asking proper quastions of professional employes

in the employ of his distriet, which questions relate. to. the

fitness of stich employes to continue to serve as teachers in:

the employ of the school district.

0.. The ** Pennsylvania Loyalty Act.’ the Act of De-

eember 22, 1951, P. L. 1726. in no Wity insulates a pro.

fessional eniploye from being asked questions as to his

loyalty, and said Act is not involved in the present pro

ceeding. :

6. A.superintendent of schools is Justified in rating a

professional employe ‘unsatisfactory’? when such employe

refuses to answer Proper questions relating& to his lovalts

asked of him by the superintendent of schools,

¢. The refuse) to answer referred to in conelusion No. ¢

herein, constitutes “incompetency.

he

fil

fr

Ne

all

mi

an

Haas Opinion (Super. of Public Inst.) Zia

8. The refusal to answer referred to in conelusion No. 6

ein, constitutes ‘persistent and wilful violation of the

00] laws of thts Commonwealth.’

% A superintendent of schools is Justified in rating a

fersional employe ‘unsatisfactory’? when such pre-

ronal employe refuses to answer questions put to him

t sub-committee of- the House of Representatives of the

gress. of the United States and invokes the hitth

rndment to the Federal Constitution on the ground that

hful answers thereto would tend to ineriminate him,

ADJUDICATION AND ORDER

And now, this eighteenth day of November, 1954, after

ing and argument and after reviewing all the testimony

or taken in the hearing, the appeal of Solomon Taas

ta decision of the Board of Public Education of the

ol Distriet of the City of Philadelphia, Pennsylvania,

‘ing that the Board of Publie Education Unproperly lis.

ed him as a professional employe, is hereby Gismissed

the action of the Board of Publie Kdueation is affirmecd.

By Francis B. Haas, P .

Supe rints nele nt of Publi Lissty ie Pteom.

&.

22a Watson Opinion (COP 3) j

J

IN THE. on eT oF Common Pras No: 3 I8 AND POR Tin

Cor NTY OF PinLavrir HA (First Jtpicran

‘Districr of PES NSYLVANIA)

Bosrp or Prarie Kpucation

Schoo, Disrricr or PHILADELPHIA al por

. | December Term 1054

v, : | No. 8104

.

Goto Warsox

Pniip Does an, Exe., for Appellant

Kpwanp bh, Soxen, Exo Sipxey L. Wiekexuaver, Ksy.,

: and C, Renton Ritoaps, Exg., for Appellee,

Before’ Minsxen, P. J., Waren. J.

—_—__—.

OPINION SUR APPEAL FROM SUPERINTENDENT OF

PUBLIC INSTRUCTION.

Mixer, P. J:

July 29th, THD,

,

This isan appeal from the onles of the S ate Superin

tencent of Public dgstrietion aflirining the setion of th

Board of Public Education ot th: School District of Phila

delphia distaissing the appellant trom her emplowment as a

professional employee, We have this diss filed an opinion

and order in sn Appyal from a Similar dismiss: al, in the cas,

of Board Of Pibhlie KB A Pre Moe nthe Tf. An nson, Dever

ber Term 1954, No. 8319. The leevesal Issue ‘sanvalvert in thi-

appeal are similar do these invelved in the At oe ip yprea

Rather thaa disenss, therm a: eainat denyeth, we attae bh heret

4 Gap ot the Opunlon filed in that case

€2

Watson Opinion (COP 3) 25a

~The onl, factual differences in the two Cases stressed hy

counsel in the oral argument: and briefs are that in this

cise the appellant, in, refusing to apswer WUESHONS pit to

her by? the congressional committer, retied on the list

Amendment to the federal Constitution rather chan the Fifth

Amendment, and the appellan’ in this ease had at ay earlier

time been interviewed by the Saperintendent of Schools atid

had apparently given him satisfactory answers. to questions

Which he then asked. Those facts are not controlling in our

view. Itis not the reasons given for the refusal to ANswer,

but the refusal itself, the lack 6f candor and frankness, which

gave rise to doubts of the teacher's rehadalitw and com-

peteney and impelled her’ dismissal. Nor worntd previous

» knowledge or Belief in the mind of the superintendent based

on his experience with the tedeler or Interviews with her

dispel stich doubts. The Board of Public Relaeation felt that

the mere failure to answer spelled ineompeteney, regardless

of reasyns and rewardloss of past history. In this we think

the Board aeted properly, as we have dready declared in the

Atkinson opinion.

; ORDER’ :

ASD Now, toowil, this Lor} dea of July, 159, the appeal

of Goldie Watson Prom the orderot the State Superivftendent

of Publié Instruction affirmins appellant's dismissal by the

Joard of Priblic Klneation Is Aistmitssecad, canned thee order of

the State Superintendent Of Public Enstruction is affirmed.

rs .

© ORY THE-COURT:

i * Miser, Pd

‘

24a. Atkinson Opinion (COP 3)

In tHe Covurr of ComMMON PLEas No. 3 IN AND FOR THE

COUNTY OF PHILADELPHIA (First Jupicrar Disrrrer

OF PENNsyLVaNia)

+

Boarp or Pruprie Epucatiox

ScHOOL District oF PHILADELPHIA December Term O54

& ; Ne S315

Vv.

Sapie T. ArKiInsox

Boe ees

Prankiin Pov, Esq.. for Ay pellant

Epwarp B. SOKEN, Esq.,

SIDNEY LL, W°cKENHAVER, Ese. and

for A ppellee

Before Miter, P. J.

Waters, ./.

a

OPINION SUR APPEAL FROM SUPERINTENDENT

OF PUBLIC INSTRUCTION. .

Miuner, P. J.

July 29th, 1959,

_ This is an appeal from the order of the Superintender:

of Publie Instruction of the commonwealth affirming the «

tion of the Board of 3 uhiie Betucation in terminating ei

contract of emplowment of a professional employee, Sa]

T. Atkinson, the appellant, was employed as an elements:

teacher at the Barton School, in the Sehoo! District ot

delphia.- Charges were preferred against her and a hear:

Wiis hed before the Board of Public Kdueation peur stisanet ft

the Provisions of the Public School Code. Act af Vbewak 1

Ath Mmsen Opinion 1S fe ae a

PMO, PLL. 80, section 127, 24 PLS. TLD27. After che hear.

ins, Which was held on April 9, 1954, the appellant was dis-

inissed-from her position on May 10, 1954. On appeal to the

Superintendent of Publie Instruction. the superintendent,

in an adjudi@ation and order filed January 17, 1955, affirmed

the dismissal This appeal followed. ~ Parsuant to section

11S2 of the code, 244 PLS. 11-1182. we consider the matter on

the record as presented to us, there bein ne request fora

hearing de nove,

. The charge preferred against ahe appellant was ineom-

peteney. The evidence presented at the hearing before the

Board af Public Mducation was that on November ly, 1853,

the appellant had been elled before a sub-committee of the

House of Representatives of the Congress of the United

States investicatine Un-American activities, and, when

asked cortain questions dealing with her lovalty to the vov-

ernment of the United States, she refused to answer, invok-

"ing the Fifth Amendment to th® federal Constitution as the

basis of her refusal:ahat on Novomber 20), 1955, the Super-

intendent ‘of Schools of Philadelphia rated the appellant

_ unsatisfactory as a professional employee; that on No-

vember 24, 1955, the Superintendent of Schools notified the

appellant that she had been rated “unsatisfactery’? as a

resnlt of her refusal to answer questions put to her by the

congressional sub-committee, The appellant presented no

evidence at the hetring, Her counsel moved for dismissal

of the charges on the grounds that they did not allege

conduet constituting incompeteney under the Publie School

Code, and that thew violated thy federal Constitutional hy

Mpesing a penaliv on the claim of a-federally guaranteed

Privilege, |

Phe reeord shows that the appellant, when called before

he congressional sabecommittes, ata hearing hetd in Phils.

felphiaion November 17, 120 eave her Name ated address,

ated that she Was a first-grade teacher in thine Dhnidcaededolyici

ehoet ssstem,. by which she had been emploved for ten

ats, mel wave a brief resume of fer mneational bevel

26a Atkinson Opinion (CCP 3)

ground. She was then asked the following questions |y

counsel for the sub-committee, and gave the answers her.

set forth.

“Q. Mrs. Atkinson, have you ever been a member

of the Communist: Party at any time?

A. I decline to answer on the grounds of possible

self-inerimination, based on the Fifth Amendment «ot

the Constitution, ° ;

Q. This committee has sworn testimony, Mrs.

Atkinson, by witnesses before the committee, ander

oath, that you haye been a member of the United

People’s Club of the (ommunist Party, ix that correc’

A. I deeline fo answer on the same rrounds,

Q. We also have sworn testimony that vour Con;

munist membership book in the year 1945 was Number

S600. Did von have such a Communist Party member

ship book? : ;

A. T invoke the privileges of the Fifth Amendment:

on the same grounds, ’’

No other questions Were asked of the appellant at the

sub-coniimittes hearing. In the hearing before the Board

of Edueation at which the appellant was present and a

‘tenographic transcript of the record before the sub-eor

mittee of the House of Representatives investigating Pi:

American activities, Which included the above questions to

the appellant and her answers thereto, Was introdueed. iy

evidence and read in the open hearing, the appellant mare

no denial of its corre¢tness. In fact, throughout the hear-

ing and in the briefs of her counsel the appellant concede!

the correctness of the report of the sub-committee ac given

above. The Superintendent of Schools testified before the

board and explained the hasis of his conclusion that the ap

pellant’s refusal to answer the sub-committee's questions

marked her as incompetent and therefore unfit to continue

as a public-school teacher,

- Atkinson Opinion (COP 3) via

Section 1122 of the Public School Code, 24 PLS. 11-1 pea

as amended, lists the valid causes for Which a professional

employee's contract may be terminated as Mamorality, in-

competeney, intemperance, cruelty, persistent newigence,

mental derangement, and persistent and wilful Violation at

the school laws. The specifie charge in this case was the

second of the foregoing, ie. Meompeteney,

We note that the Cpinion of the Superintendent of Pub.

‘lie Instruction states that the appellant was charged alse

With persistent and wilful Violation of the schoo! laws of

the commonwealth. This appears to be incorreet, as it is

the first reference that we find in the reeord ta such a charge.

We therefore disregard the charge of persistent and wilful

Violation of the school laws and eontine our consideration te

the charge of Incompetenes, which, if sustained, issufticient

to justify the dismissal.

The is-ne is two-fold. First: Did the conduct of the

appellant in refusing to answer the questions pnt to her iva

the committee warrant a finding that she was Incompetent?

Second: Eveti if the school authorities were warragieid Iso

finding under the provisions of the Public School Code ana

the Ponnsyivania decisions, were such a finding and the ap-

pellant’s dismissal precluded by the fact that dn refusing to

Cuswer the committee’s questions she was exereising aright

Suaranteed her by the federal Constitution? The appellant

filed eighteen exceptions to the adjudication of the Super-.

intendent of Public Instruction, but at-the arciment before

the eourt the foregoing twa issues were the calv ones

tonched upon, and appellant's Grickthgals. so ‘ith the-

federal questi¢n involved. Woe shall, howeve . notice cach

of the exceptions filed, for the purpose of disposing of them

formally, ; :

~ Exeeption No. 1 is without merit. The testimony of the

“uperintendent of schools was competent, to show the aetion.

taken by him in respect of the rating viven the tppetlant and

(0 explain his ratiocination in the circumstances and his reia-

28a Atkinson Opinion (¢( Crs)

sons for reaching the conclusion that he reached on the

before him. This exception is dismissed.

Exception No, 2 is dismissed: The action of the Board

of Public Edueation Was not based on a refusal to als Wer

questions pertaining to religions or political beliefs but on

a refusal to answer questions pertaining to ACTIVITIES ani

associations having to do with what has been Judicially

declared to be ‘a subversive conspiracy,

Exception No, 3 js based on the erroneous theory that

the exclusive procedure available to -the hoard was under

the Pennsylvania Loyalty Act. The decision of the Sn.

preme Court in Board of Eduention +. B, lan, 386 Pa, so

(1996), aff'd 357 U.S. 399. ( 1958) requires that this o

tion be dismissed, .

Exception No, 6 complains of lack of specificity in the

charge preferred against the appellant. Holding as we de

that the dismissal] Was Warranted if either of the Charges of

incompetency or Violation of the school laws was Supported,

and that the evidence Supports the finding of Incompeteney,

this exeeption has no Weight and is dismissed,

Exception No. 8 has no merit and js dismissgd. The

rating of unsatisfactory ‘by the superintendent and the

bringing of charges followed forthwith after

the appellant Which gave rise to them,

previous rating of satisfactory, before

are considering, was not conclusive,

Exceptions Nox. 10 and 11 must be sustaines

sarily for she reasons given therein,

facts

-

NCOP *

the Aetion of

The appellant’

the events Which we

I not neees.

but because io charg

Was preferred against the appellant of persistent and wilful

Violation of the school Iaws of the commonwealth,

ae Exception No, 13 js not supparted by the record, The

Superintendent's adjudication made nox finding that the ap,

pellant’s invoking of the Fifth Amendme;

evidence of guilt of any erime suggested

asked of her. This exception is dismissed.

Exception No, 17 must be sustained. There Is no oy}

lice In the reeord to support the Superintendent's fourth,

Nt privilege wa.

by the questions

Athinson Opinion (COP 3) 20a

Nth, seventh, and eighth conclusions of law, which refer to

‘fusal to answer questions put by the superintendent of

thools. The brief of counsel for the Board of. Public

ducation explains that these conclusions were Tneluded. in

we Superintendent's adjudication by inadvertence. We

ecard them as harmless surplasage, if the evidence other.

Ise supports the charge,

Exception No. 18, js dismissed. The record before us

cludes a certifieation by the seeretary and business man.

erof the board that the motion fer dismissal of the ap.

Hlant was adopted on May 10, 1954, by a vote of eleven

one, This is a compliance with the requirement of see-

nm 1129 of the code, 24 PLS. 11-1129, that the véte he hy

o-thirds of all the members: of. the board. There is ne

Wrement in the statute that all those voting must have

‘n present at the hearing. Moreover, the record-shows

Woof the eleven who voted for the motion of dismissal, ten

re present at the hearing, though one arrived date.

Of the remaining exceptions, the ninth, twelfth, 4th

l 15th have to do‘with the appellant's contention that,

t. the finding of incompetency and, second, the lismissals

‘e Unconstitutional because the action on her part which

ught them abeut was one taken by her in the exercise of

‘derally ‘guatainteed privilege, This contention we shall

uss iater, Presently we shall address ourselves to the

priety of the board ’s finding of INCOM peteney on the evi.

ce before it, which is the subject of the appellant's

rth, fifth, seventh, and 16th exceptions.

The term “incompeteney as used in the Public Schoo!

eof Pennsylvania is not confined to the Classroom ae.

des of-a teacher or to the teacher’. edneational back.

ind or mastery of the teaching art. A schoolteachers

lence upon her pupils is not limited to what she “uv

does in the schoolroom, and a teacher's right to teaeh

lot depend: solely upon her eonduet im the sehoel,

lan ¢. School District of Philadd phia, G8 Pa. Superior

S (1955), aff'd 388 Pal 213 (1997). A teacher's Ineo

\

50a Atkinson Opinion (CPs)

petency may be determined on the basis of her actions en

tirely outside the classrooms and outside school nurs,

where her conduet tends to bring her into public disrepy’

and to forfeit the respect and confidence of the communtiy.

Horosko v. Mt. Pleasant Twp. School District, 835 Pa. 360

(1989). See also Brown's Case, 151 Pa. Superior @t. o22

(1943): West Mahanoy Twp. School District vo Kella. Ws

Pa. Superior Ct. 601 (1944). The refusal of a teacher to

answer questions put to him by the school superintendent

touching the teacher's past Counections with th Comimunis!

Party will justify a finding of incompeteney and consequen!

dismissal. Board-of Public Education vo Bedan, supra. tn

the Beilan case, as in this ease, the allegation of ineom-

petency was based solely on the refusal to answer questions,

Beilan refused te answer questions put by his superin

tendent as well as questions asked by a congressional com

mittee, but, speaking for the majority of the Pennsylvania

Supreme Court, Mr. Justice Chidsey- found i} unnecessary

to consider the refusal to answer the congressional com

mittee. The dismissal was apheld solely on Beilan’s refusii

‘to give answers to questions put to him dy the sehgol super

intendent, in interviews which, as Mr. Justice Burton

pointed out in the United States Supreme Court's affirming

opinion, 397 U.S. 399, “were given no publicity and were

attended only by petitioner, his superintendent and the

Assistant Solicitor of the Board.’ In our view, the refusal

-to answer before the congressional sub-commiltee was far

more serious, both in Beilan’s case and in the case of this

appellant, attended as it was with publicity which would

bring it to the attention of those whose children’ contd |

vitally affected.

It was not necessary’ to draw inferences of guilt from

Beilan’s refusal to answer. The samy is true in) Mrs:

Atkinson's ease, She was net branded incompetent beeays«

she was or had been a Communist. She was regarded by

-her employing board and by her superintendent as unfit to

continue as a teacher because of her lack of frankness,

apes Atkinson. Opinion (COP 3) ola

ndor, and coaperation; beeause, ina time of national

ress and danger, perhaps the gravest danger that has ever

mfronted the nation, she took réfnuge behind a cloak of

ereey. ,

It seems necessary at the very outset to define our at-

tude towards Communism, and what we think is the atti

ie of the Pennsylvania public. We are aeains it. We

egard others who are eninst it as our friends and those

tho favor it as our enemies. Those who will not commit

hemselves we regard with natural suspicion. While, as

[r. Justice Bell stated in. ‘his dissenting opinion. in the

Soilan case, many influential Americans fail to appreciate

he menace of Communism, it is nevertheless true that our

Supreme Court has taken judicial notice of the fact that

he Communist Party is a subversive organization which

onspires to teach and to advocate the overthrow of the gov-

rnment of the United States by force and violence. fy pe ale

if Albert. 372 Pa. 13 (1953). There have been many other

ndieations of judicial awareness of the cravity of the Com-

nunist threat. It has been held that the term **¢ ‘ommiunist

s slanderous per se. Solosko ¢. Parton, 385 Pa. 419 (1956).

But to our minds the greatest danger stems not gfrom open

rdvoeacy of Communist doctrine, With that we ean deal

onoeven terms as long es our press remains free ane our

Amrehes and schools arevallowed to ineuleate in our vouth

the principles and doetrines on whieh this nation was

founded and has prospered. ‘The real menace of Com."

munism lies not in its substanee but in its methard, its secret,

slinking, insidious infiltration, in) the guise of PnMOcent .

benevolence, into key positions where most harm can be

done, in the schools, in departnrents of the vovernment, in

the entertainment world, and elsewhe:e.

It is not within the provinee of the courts to say who

shall and who shall not be employed as teachers in the public

schools. That function the legislature has entrusted to the

constituted school authorities, in its wisdom cireumseribiig

ov Atkinson Opinion (CCP 3)

the power of those authorities: bw the Public School Code

as well for the welfare of public and pupils in the influences

to which they may be exposed as for the proteetion of pro

fessional employees in their tenure of office. Our part is to

see that the authorities do not abuse the power entrusted

to them or exercise it arbitrarily er capriciously. Reeogniz-

ing the seriousness of the danger to our institutions from

the creeping, boring, undermining threat of Communism, we

cannot say that a school board is bound to keep on its

roster a teacher who, when asked to say which side she is

on, refuses to stand up and be counted. To the contrary, we

are convineed that the school authorities wonld be remiss if

they did not weed out from,the teaching staff all who exhibit

the evasiveness, the lack of candor, the peeuliar traits of

character and personality which prevent some people from

openly aligning themselves against the underground forces

of subversion, traits which not only arouse natural suspicion

in the minds of those entrusted with the administration of

our system of education, but bring the teacher who exhibit-

them into public disrepute as one not possessing the quali-

fications looked for in a person charged with the instruction

of our youth. : |

We are not alone in this conviction. The courts of

other states, from California to Massachusetts, have spoken

to like effect. California,.in Board of Education ¢. Wilkin-

son, 270 P. zd 82, 86 (1954), has said, ‘In the life-and-death

struggle into which our people have been plunged by the

monstrous conspiracy called communism, it is beeoring

more and more apparent that it is essential for the continu-

ance of our national life that we know who is for us ana who

is against us. This is no time to allow any person who

would destroy us, our lhberties, our religious convictions,

and our government to be employed in any branch of that

vovernment, ‘to bite the hand that feeds it.’ The men and

women of America who pay their salaries have a right to

know whether or not any of their employees are com-

munists.." And similarly Chief Justice Qua, of Massachu-

setts,

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Atkinson Opinion (CCP 3) 33a

ts. in Faron v. School Committee of Boston, 120 N. EB.

772. 774 (194) 2 ** The school committee could find that a

eat many parents and others would be seriously disturbed

the petitioner were allowed to continue teaching, and that

's would undermine public confidence and react unfavor-

ly upon the school system. ‘Considering the position of

» petitioner entirely apart from any question of fault on

s part and as if he had merely suffered some misfortune,

ch asa terribly disfiguring personal injury, the best inter-

ts of the schools are paramount, and we cannot say that

e school committee exceeded its powerts.’”

These and many other pronouncements of the state

urts put into differe nt words the thoughtful language of

Justice Minton in o v. Board of Education of the

‘i of New York, 342 U. 8S. 485, 498 (192): ‘OA teacher

orks in a sensitive area ina Pesos There he shapes

e attitude of. young minds towards the society in which

ey live. In this, the state has a vital concern. It must

‘eserve the integrity of the schools. That ‘the school au-

orities have the right and the duty to screen the officials,

achers, and employees as to their fitness to maintain ‘the

tegrity of the schools as a part of ordered society, cannot.

» doubted. ‘One’s associates, past and present, as we Hl as

e's conduet, may properly be considered in determining

ness and loyalty. From time immemorial, one’s reputa-

on has been determined in part by the company he keeps.

1 the employment of Officials and teachers of the school

‘stem, the state may very properly inquire into the com-

iny they keep, and we know of no rule, constitutional or

herwise, that prevents ‘the state, when determining the

mess and loyalty of such persons, from considering the

vanizations and person with whom they associate.”

The publie as we ‘as, the school authorities have the

¢ht vo be informed of a public employee's associations and

mduet, past and present. This is ospec dally true of one

mployed in the delicate and sensitive’ task of a school

Sta Atkinson OpiniOw (CCP 3)

teacher. A teacher who Withholds vital information in this

regard, whether in response to private interrogation hy the

constituted authorities or in response to inquiries made |)

public bodies, forfeits all right to consideration for the posi

tion, and if already in service forfeits all right to be con.

tinued therein. By her very seeretiveness, she brands her

self_as incompetent. ; oo

Appellant’: fourth, fifth, seventh and 16th exeeption-

are therefore-dismissed. _

Having found the appellant incompetent, in- their

opinion, What were the Board of Public Education to do?

They chose to terminate her contract and dismiss her from

her employment as a public-school teacher. Were they act-

ing properly in so doing, or were they violating her con,

stitutional rights beeause the act which made her incom-

petent was the exercise on her part of a privilege guarante«d

her by the Constitution? In ether words, must the sehoo!

authorities retain the services of a teacher whom they lave

found theompetent beeanse to dismiss her would attach a

penalty to the exercise of her’ right to refuse to auswer

because of her fear of self-inerimination? This is tte sub-

ject of appellant's ninth, twelfth, 14th, and Toth excepions

and is, we think, the real thrust of her argument. She places

her reliance on Slochower v. The Board of Higher Education

of New York City, 850 U. S. 551 (19356), which we shall now

exumine,

The Slochower ease must be read -in the light of the

earlier Beilan lecision and of Lerner v. Casey, 397 UL SS.

468 (1958), which was announced at the same time as Beilan.

Each ease has its own peculiar features. Slochower wa-

dismissed from his teaching post in New York without a_

hearing, pursuant to section 903 of the Charter of the Cit

of New York, which provided that whenever an employee of

the city utilized the privilege against self- inerimination to

avoid answering a question relating to his offictal conduct

his term or tenure of office or employment should terminate

and such office or employment should be vaeant, and he

Atkinson Oviniwon (COP 3} . aT

d not be eligible to election or appointment to any offer

yployment under the eity or any agency. Under New

iaw a teacher was entitled to tenure and could not be

arged except for cause aml aster notice, hearing, and

al. The Court of Appeals of New York iterpreted

m 903 to mean that the assertion of the privilege

ist self-inerimination Was equivalent to a resignation,

man ov. Board of Education, 300 N.Y. oo. aas, 1io

MESTB. BT (1954). The United States Supreme Court

that Slochower’s summary dismissai Wats Violative: of

process Of law: no sinister meaning may be imiputed to

xercise of a person's right ander the Fifth Nmendiment,

Since section 903 operated automatically to discharge

- employee who invoked the Fifth Amendiment, the

Saction was therefore a conclusive presumption of wait,

Lerner was dismissed from his job as a subway con

roin the New York City transit system. Ufo hid in

1 the Fifth Amendnient whe nu called before the Com

oner of Investigation of the City of New York and

od to answer questions regarding commfanist aiileetion.

United States Supreme Court, ca affirming the distssal-

ed out that the New York Court of Appeals had held -

Lerner “had been discharged neither becatise oF ans

enee of communist party membership which was drawn

the exercise of the Fifth Amendment privilege ner

ase of the assertion of that constitutional protection,

ather beeause of the doubt ereated as to his reliability

refusal to answer a- relevant question put ins hs

over, a doubt which the court held justifiable yuilfe: in

ndently of appellant's reasons for his silences. Tn eet,

dministrative action was interpreted te rest olely on

efusal to respond.”’

Beilan, a Philadelphia teacher, was rated ineompetent

1 superintendent of schools and was distmessed at's T 3

ing before the Board of Publie Education in which

ared that he had refused to answer ca cade Aan ote

nunist affiliations in an interview with the snperintend

Bt ee ed Atkinson Opinion fCCPris

ent and before congressional committee. The Pennsylvania

Supreme Court upheld the dismissal based on the teacher's

yefusal to answer the superintendent and found it unneces-

sary to determine the effect of his refusal to answer the com-

mittee. The United States Supreme Court affirmed, stating,

“The only question before us is whether the Federal Con-

stitution prohibits petitioner's discharge for statutory ‘in-

_. competency’ based on his refusal to answer the superiniend-

ent’s‘questions.?? + :

The Slochower case is thus distinguishable from Lerner

and Beilan and from the instant ease not only in the respect

that Slochower was denied due process because he was dis-

missed without notice and hearing but, more <tbstantively, i

the respeet of the fundamental reason for the dismissal.

Mrs. Atkinson, like Lerner and Beilin, was discharged not

for invoking the Fifth Amendment, but for refusing te

answer pertinent qpestions. Her silenee, her seerecy, her

evasiveness, made her incompetent to teach, in the Opinion.

of her eanpleyer. We cannot déaw a distinction based on

where or to.whom the refusal to answer ix expressed, pro-

vided the inquiry Isa pertinent one and made in the course

of a legitimate investigation. Beilan’s refusal to (answer

his spperintendenty Lerner’s refusal to answer the Commis:

sioner, Mrs. Atkinson's refusal to answer the congressional

committee, all rad the same effect of raising doubt and

suspicion of the emplovee’s competency and reliability. In-

decd, as we remarked earlier im this opinion, we should

regard the refusal to answer the congressional comm ttee in

public as more serious tlian the refusal to answer the em-

ployer in private. There ean be no'doubt that the questions

asked of “Mrs. Atkinson were within the legitimate scope ot,

the committee's investigation, even though touching her

school teaching activities (Barenklatt ry] "nited States, Jane

8. 1959, Oetober erm: THs, No. 35, UGS. Stpremé Court):

‘and we cannot fail to recognize the publicity attendant on

such proceedings and its effect on the reputation and stand-

es Re

‘Atkinson Opinion (CCP 3) 37a

ing in the community of one who publicly declines to, co-

operate in the investigation. In short, the appellant having

heen found incompetent because of her refusal to answer,

quite apart from the reasons prompting her refusal, no ques-

tion of constitutional privilege was involved in the termina. -

tion of her employment. The remaining exceptions not ale

ready touched npon are therefore dismissed.

ORDER

Axp Now, to wit, this 29th day of Jury 15, the appeal

of Sadie T. Akinson from the order of the State Superin-

tendent of Public Instruction affirming appellant’s dis;

niissal by the Board of Pub:.c Edneation is dismissed,-and

the order of the State Superintendent of Public Instruction

‘is affirmed,

By THE COURT,

Mixer. 4

j8a Watson Opinion (Pa. Supreme Ct.)

OPINION OF THE SUPREME COURT OF

_ PENNSYLVANIA.

ed

BOARD OF PUBLIC EDUCATION

ow

WATSON,

Appellant.

_—_—

Arened January &, 1960. Before Joxes, ©. Rae LT Be

Mesm.xnxo, JoNts, Comes, Bok and Baers, Wl.

——

Appeal, No. 350, Jan. Th. 190%, from order of Court

of Common Pleas No. 3 of Philadelphia County, Deo. T..

1954, No. S104, in case of Board ot | “te Education Sehoot

District of Phikadelphia v. Goldie \’ 1 Order reversed.

Proceedings on rppeal from onde. of Superintendertt

of -Publie ‘Instruction terminating contract of employment.

Opinion filed dismissing appeal, and erder entered,

opinion by Mirsen, Pe ob Defendant appealed.

Philip Dorfman, with hin Dorfman, Pediner, Sacks

& Dorfman, Yor appellant.

C. Brewster Rhoads, with him Edward By Soken, Sul-

ney Le Wickenharer, and Montgomery, MeCraclen, Woarlher

ie Rhoads,for appre Hee,

Oprxion By Mr. Cittee Jestick Joxes. June 30, 1960:

The only difference between this case and Board

Public Education vo Li tille, Deacon and Atkinson, po Tans,

‘< that. here, the appellant, Goldic Watson, a Philadelphia

Watson Opies (Pa, Supreme fe oa

public school teacher, raid upon the constitutional guar-

antees of the First Amendment, instead of the Fifth, in

justifieati¢n of her refusal to answer certain questions pro-

pounded by a Subcommittee (known as the Velde Come

anittes) of the Un-American, Activities Committee of the

House of Representatives,! eoycerning membership in and

association with the Communist Pasta. Exeept for the in-

dieated ditferenee in plea in refusing to answer the Com-

tnittee’s inquiries. the material facts of this case ware <ub-

stantially the same as those in the cases of Intille, Deacon

and Afthivsen, cit. supra. .

Mrs. Watson Qecame a regular teacher in the Phila-

delphia public schools in 1951 with tenyre, alter 1937, under

the Public Sehool Code, On February 1, Ho4, pursuant

te a snbpowta. she appeaged before the Congressional Com-

onittes, She eave the Committee her-name, address and a

resume of her educational backsronnd-aud employment ree:

ond asa teacher. When asked whether she had ever been a

member of the Comrunist Party and, similar questions re-

lating to past Communist afiliations on her part, she de-

clined to answer and explained that such questions in her

aAiew Were “in violation of her constitutional rights and

that she particularly relied on the First) Amendment.”

Within one day (viz, on February 18, 1954) Dr Louis P.

Hover, Superintendent of the Philadelphia Public Sehools,

ore-rated Mrs. Watson ‘unsatisfactory’ as a professional

employee of the School District and suspended hem from

her position as a teacher in an elemeutary school, Dr.

Hover sent her a letter informing her that she had been

Fated ‘‘unsatisfactory as a result of her refusal to answer

qitestions prepornded by the Committee, On March 9, 1954,

the Board preferred charges of incompetency avainst Mrs.

Watson as a ground for her dismissal on Dr. Hoyer’s

recommendation Se

As in the Case or Pointe wa Fiitiey ahh a EME TS, Sete ard

Irhinson, po dante, the term Comittee, Wherever tt appears ity Cats copenriy okt,

shall be taker tec amaze toe caberwe ufertitieed Subcommittee or tite Un-American

Activities Committee of tie House of Re prescutatives of the United States.

40a Watson Opinion (Pa, Supreme Ct)

A hearing before the Board of Education on the charges:

was held on June 4, 1954, at which time a transeript of

Mrs. Watson's testimony before the Committee, includir2

-the unanswered interrogations made of her, was introduced

in evidence. Dr, Hoyer stated at the hearing that he had

rated Mrs. Watson ‘‘unsatisfactory’’,on the basis of an

official rating card prepared and distributed by the Depart.

ment of Public Instruction of the Commonwealth and that,

as the basis of his re-rating; he had checked three items

listedk on the eard in respeet of which he had found her

deficient, namely, (1) civic responsibility, (2) Judgment,

and (3) appreciation and ideals. He testified that in his

opinion Mrs. Watson, by refusing to answer questions of

‘the Committee coneerning her subscription to subversiv:

doctrines, had exhibited improper ecivie responsibility, poor

judgment and a. lack of appreciation and ideals. He also

testified, however, that school records showed that Mrs.

Watson had been a. competent teacher during all of the

twenty-three years she had continuously taught in th

Philadelphia publie schools. |

No other evidence to support the charge of incom-

peteney against Mrs. Watson was offered at the hearing.

Nor was she askei-any questions by the Board or the Super-

‘ntendent at the hearing until she offered to and did testify.

She explained that she had refused t6 answer questions at

the Committee hearing because she felt that the C‘ommitter

was conducting an inquisition with no legitimate legi>

lative purpose, that the members of the Committee were

using the hearings for pnrposes of personal political ag-

erandisement, that the Committee had no right to inquir

into her associations and beliefs, and that her freedoni~ ef

speech and association guaranteed by the First Amendment

would be violated if she were eompelled to answer the Cor

cnittes's questions. Both Mrs. Watson and Dr. Hover testi

fied that she had speken frankly to him in his office i

October of 1952 concerning her ioyalty and her membershy

1a hamber of organizations and that, at the eonclusion @!

Watson Opinion (Pal, Supreme Ch) : tila

the interview, Dr. Hover had told her that he was satisfied

that she had afiswered all of his questions satisfactorily.

On June 29, 1954, the Board dismissed Mrs. AVatson

from her position as a teacher on the charge of incompe

teney for her failire to answer questions of the Comunittee,

She appealed from the action of the Board to the Superin

tendent of Publie Instruction of the Commonwealth who,

on January 17, 1955, dismissed her appeat and affirmed the

action of the Board.

Mes. Watson then appealed to the Court of Common

Pleas of Philadelphia County from the Superintendent's

order affirming, her dis missal. The court dismissed her ap

peal ane Affirmed the order of the Superintendent of Public

Instruction citing as the basis for its action the yeasons set

forth in its opinion in Board of Public Belucatrou, Soho

District of Philadelphia v. Atkinson, Phila, ©. BL Neo 3,

December: Perm it, Na Sots. The reasons so nsstomed:

in the Affiwser case Were (1) that a refusal te answer ques

tions propounded by the, Congressional Cotmittee relating

to alleged) Communist affiliations of the “witness renders

# teacher asia eve within the intent of the frie |

School Code. and (2) that a discharge on the roid of i

competency for refusal to answer the Committee's que Hee

does not Violate a teacher's vights under the Federal Con-

stitution, 5

So far as the groynd assigned for Mrs. Wi Atson's dis

nissalas a public school teacher and the procedure by Which

it was effected are concerned, this ease is not one bit dit-

ferent from the Jatille, Deacow and Athinson cases, cit.

supra, in which we have this day harndedk Lowa an opinion ;

sustaining the appellant teache ee contention and ordering —

their reinstatement to the posjtions~ from wich they were

stispemded ame Liter dismissed, ;

Bven uf Mrs. Wathen ’s plese’ of the Parsi: Aime neboent

mats, nel eee placed tef, Bareublatt , 2, ted States, ABO

EOS. 109). Per refusal te answer thee ¢ ‘ommitter. ~ tphie stots

did net render her incompetent as a public school teacher,

42a Watson Opinion (Pa. Supreme Ct.)

Justas inthe Jutille, Deacon and Atkinson cases, here, also,

the appellant did not refuse fo answer any question of her

admnistretive superior (Dr. Heyer) and her employer

Beard did not ask her any. All that was produced at the

hearine before the Board to support the charge of ineom.

pefenes avainst the appellant was a transcript of the record

of her appearance before the Committee when she refused

fo answer certain questions ona plea of constitutional riga' -

under the First’ Amendment so to de. Uf the priviles+

‘laimed as not legally available.to the witness in the cir

cumstances, that fact wonld not serve to prove her enilty #

of the ehttree of incompeteney in her pesition as a Penn-

<vivania school teacher with tenure, ;

If a withess persists in refusing to anwer quéstions of

ao Conecressional Committee on asserted constitution! a

vronnds, whieh the Committee does not acknowledge asa

leoal basis for the refusal to answer, a eitation for contemyt

isimerder and the witness can be indieted and found enilty

oPetatemnt of Congress. But, even that eventuality wonld

aot render the witness Hiahle to a State penalty for having

refiised te answer the Committee's questions on a plea of a

constitutional prvilewe. As matters transpired in Mrs.

Watsons ease. her plea of the First Amendment would ap

pear to heave been properly interposed? But, even if oa

“plea Wits not validly lodged, the most that cod be said o

the withess*s refusal to answer the Committee's acer

Was that she aeted on a mistaken belief as to what her eon

stifutional rights were under the First Amendment Th.

record in this case does not furnish the slightest infers

nor (does anvetie Venture to suggest. that Mrs. Watsern’-

pelea ot the First Ati idinent Was made either in bad fait):

2 For ty retinal toscanswer the Congressional Committee's qu

trripeitiag tact Ceanmiuniet atiiiations, Mrs. Watson was indicts { ter con

Of Comaress ot five vaunte Ca separate count fur each of five unanswer: 1 qi

Phons relating ti ( cotlrenitigresgy Sie teal hetore a judge without a yur

Was tound gui'ty of the contempt charged and sentenced. On appeal tet

United States Court ot Appeals tor the Distprct of Columbia Circuit, the -

Vee tron Ww reyersedd oom Tyme D8, 2060 ad the cease remanded terté oasten +

Watson Opinion (Pa, Supreme Ct.) 43a

frivolously. Such being the unquestioned situation,

viously the State could not draw unfavorable inferences:

to fher] truthfulness, eandor or jher} moral character

general if [her] refusal to answer was based on acbeliet

at the United States Constitution prohibited the type of

qniry which the Committee was making’: Aeongishera rv.

ate Bar of Callfornia, 303 U.S. 252, 270 (1957).

Nor can the witness be faulted for a mistaken belief

‘such it wes) as to what her constitutional rights were

der the First Amendment. Her appearanee before the

mimittee antedated by more than five years the decision

the Supreme Court in Barenblat! where it was held (five

four). mcireumstances quite similar to the present ease, *

at the First Amendment did not justify Barenblatt’s re-

sal to answer questions of the same Congressional ‘Com-

ftee concerning Communism. We have referred to the

vision in the Court in Barewblatt only to stress the fact

at, Where four of the nine well trained lecal minds of the

inreme Court hold te the opinion that the First Amend-

nt justified Barenblatt in his a Susalto answer the Com-

tees qaiestions, surely a person untrained ino the law

huot justly be thought to be incompetent for entertaining .

like opinion and acting upon it.

This case presents, then, the dismissal ot the appellant

teavher with tenure, by the Board oF Beueation sol Iv be

use she refused to answer éertain questions of the Com

essional Committee in reliance on assyrted constitutional

chts. This did not constitute lawful ground tor the Board *<

rogation of the appellant®s centract as a professional on

ove Of the Pubhe Sehool District on a charee ot ineom

teney, As recognized in Slo ris rove Board a® Meagher

luce on at New York, 300 U.S, 549, 508, 7 1 Pwr} fia

ing tor the’ City authorities ick 3 to dmguire inte

ochower’s fitness, but’ quite another for his discharge to

based entirely on events occurring before a federal com

tee whose inqufry was announced as not direeted at ‘th:

operty, affairs, or government of the city, or... of

dta Watson Opinion (Pa, Supreme Ct.)

cial conduct of city employees.’ *” Here, likewise, the Con.

gressional Committee w: as not charged with the duty. of

ascertaining which, if any, of -Philadelphia’s: school teaches,

Was incompetent within the meaning of the Pennsylvania

Publie School Code.

In Board of Publiv Education v. Beilay, 886 Pa. 82,04,

Tlo A. 2d 327, which the appellee presently cites, this court.

squarely based Beilan’s dismissal on the ground that he

had refused to answer questions of his S Superintendent in

matters touching his ¢: ipacity as a teacher. Speaking for

sthe court, Mr. Justice. Crupsey said, ** We are satisfied tha

his refusal to answer the inquiry of his administrative. su-

pertor constituted incompeteney within ur definition of

that term.’’

Supreme Court of the United States recesnized, in affirm.

ing, 807 UL $.°399, 409 (1958), that The Pennsylvania

Supreme Cdurt merely equated refusal to answer the cnr:

ploying Board’s relevant questions with statutory *ineorm-

peteney’.’* (Emphasis supplied.)

We also hold, in keeping with our decision in Board of.

Public Education v. Intille, Deacon and Atkitison, p. 1, ante,

that a teacher's refusal to answer questions touching her

lovalty does -not constitute **incompetency v"* within the

meaning of that term as used in the Public School Code of

1949 and that any nvoeeeding looking to the dismissal of 4

teacher with tenure for alleged disloyalty must be broucht

and proceeded with under the ‘provisions of. the Ponnsy-

Vania Loyalty Act of December 22, Mol, P: L. 1726 (60 PS

211 et seq.).

It follows, therefore, that the Boat’ x dfs mixéal of the

appellant-on the ground of alleged incompetency, whieh wa

based alone on her refusal to answer questions of the Com-

mittee on a plea of privilege under the First Amendinent.

deprived her. without lawful cause .of her right te follow

her profession, as a teaeher with te nure, in violation’ of the

due process r juirement of the Fourteenth Amendment.

(Kmphasis supplied.) And, on certiorari’, the-

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Watson Opinion oP. Supreme Cf) $0

White it is unnecessary for us te puss pon tha iapeped

t's additional contention thatthe hearing given her le

' Board did net comply with the requirements of pre

hiral due process, reference to the heartue, ane the ees

led manner in whieh it) was. condueted, will serve on

point further the import&nat fact, which sisauds out oles,

Ty in the record, that the appellant was dismissed <ehedly

awuse Of her refusal to answer certain questions of tin

‘

minittes in volanee on a constitutional poaviless. ‘Ths

ard’s charge against the appellant being INCOMIpeteney it

Scapacity as a teacher, she called twelve well quatitied

Hesses, aceording to counsel's offers of pivot, to testit’y

her competency as a teacher and te her keen sense of

ic responsibility, sound judement, afid Appreciation and

als of citizenship. An objection by counsel for the Borntrd

qich of the proffered witnesses was sustained by the

ardoon the ground that their testimony woukd de irrel:

ffoand immaterial to the charge which was based: ex

sively oon her refusal to answer the Congressional Com

fee's questions, Wher fer the exelnded testimony of thy

nesses offered by the afpellant would have been eredibie!

net, it would seem te have been both relevant amd ma

lal to her refutation of any appropriate charwe sof in

npetoney, a

‘The order of. the court below is reverses ama the reeard

handed for further proceedings net ineonmsistent with hi-

Hien

4ha Watson Dissenting Opinion (Pa. Supreme Ct)

DISSENTING OPINION BY MR. JUSTICE MUSMANNO.

My distinguished colleague Justice Eacex begins his

admirable and formidable dissent wtih the phrase; ‘*t em,

phatically dissent!’ If there were a way to emphasise

‘‘omphaticatly’’, 1 would do so, for L regard the decision

of the Court in this ease as a most unfortunate.one. [1 is

one to baffle the- intelleet, confound the law, and set at

hazard the seales in which ate weighed the civie responsi

hilities and moral values expected of and required in a

~chool teacher. :

If Mrs. Goldie Watson, the teacher invelved im this

case, had publicly’ declared that she would not respect the

— courts of Pennsylvania and the United States, there can be

ne doubt-that this Court would have affirmed any decision

of the Philadelphia school authorities which dismissed her

as lacking the competence needed to teach children. Equally.

if she had declared that’she had no respect for the offiee of

the President of the United States, this Court would) un-

donbtedly have agreed that she had proved herself dis

cuatified and ineompetent to teach the future citizens af

this country. But beeause M¥s. Watson treated wtih scorn

and contumely the legislative branch of our government:

this Court sees no fault in Mr. Watson which weald justify

-hor dismissal. Uf there is logic in this kind of a distinetion,

it escapes me,

The Majerity says that the onty difference batween this

eass and the Diacen-lutile Ukiison case (hbecision hated

down the same day). is that the teachers Deacon, Pntille and

Vikinsen pleaded the Fifth Anrendment and Mrs. Watkin-

sleaded the First Amendroaent. -This is like saving that ph

only ditferenes between the defenses offered baw Woo Trel

individually charged for murder is that one pleaded he had

Nred in seff-defense and the other said that lie killed beedu-

ele hated his vietim. 3 . ;

The ditferenge between the Fifth and the First Amend

ee to the eee Petwwoon Asked Zo Pha be etth Aen

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Watson Dissenting Opinion (Pa, Supreme Ct.) 40a

was designed to save one from giving evidence against

If in a criminal proseeation, The First Amendimeni

rohibition on Congress against the passage of certain

of levislation. The only thing they have in common

itt they are both Amendments. In addition, and con:

to what the Majerity says, the facts in this ease are

ent from the faets in the Deacon-Intille-Athinsen case.

at ease the three teachers were askad by the House Un-

jean Activities Committee with regard to their alleged

subversive activities and they refused to answer on the

id that their answers might Ineriminate them. This

t held they could not be dismissed: from their school

‘ons for having invoked a. Federal right, Bui te the

nt ease the teacher Mrs. Watson did not inveke the,

Amendment. She pleaded the First Amendment; and

school Board properly distnissed hen. And this Court,

attenuated a reasoning process as T have seen ityudi

pinions, holds that Mrs, Watson could not be dismissed

ar. Was

The House Un-American ‘Activities Committee was con-

ne an investigation inte alleged Communist infiltration

« Philadeiphia schools. In the process of this investi-

ny it put a perfectly reasonable question to Mrs. Wat,

Hamely : ** Did you ever attend a Communist sehool or

hool for instruction of Communist teachers: ins New

; Sake gate ire es

Cstate: -

Could anything be more relevant? Could anything be

- conducive toward obtaining specific infertatic nu with

rd to the alleged Communist infiltration im the sch »ols

hiladelphia than ascertaining whether school teachers.

J being instracted on how to teach Communist ideolggy?

if the answer to that question would have subjected

Watson to possible criminal proseeution, she aveuld

shad the right under the Fifth Amegdment to refuse to

cer, Speaking as a member. of this Court 1 do not

ve that such an answer would entitle her to hold her

48x Watson Dissenting Opinion (Pa. Supreme Ct.)

Job, but™ the Majority held to the contrary in the Deacon-

.

Atkinson-Intille e Ines. However, I repeat dnd emphasiz«,

Mrs. Watsoti in thiS ease did not invoke the Fifth Amend-

ment. 9 ;

The chairman of the. subcommittee conducting the

hearing even suggested that she could plead: the Fifth

Amendment, but she declined to aceept its protection... She

wanted her defiance of the Committee to be complete. She

said that the eommittee had no right whatsover to ask her

questions about her ‘‘associations, memberships, confer-.

ences, or speeches.’’ It will be noted that here, Mrs. Wat-

son, making use of the well-knewti-trick in debate to ascribe

to one's opponent what he has not said and then reply

devastatingly to that unspoken accusation, included among

the things that the committee could not ask her about, her

“conferenees or speeches.’? No one had asked her about

her conferences and speeches, nor was there any evident

intent that the committee: would question her about her

conferences and speeches, She was. asked about her

participation, if any, in a movement conunitted to destroy-

ing the American school system, but Mrs. Watson deelined

to answer. According to Mrs. Watson’s reasoning, . she.

‘vould attend a school of instruction on, how tg make plans

for the assassination of the President of the United States,

aml she still would be free from inquiry ‘as to whether, as

a school teacher, she attended such a school. Counsel for

the committee, Mr. Kunzig, asked her a seeond time: ** Have

you ever attended any Communist instruction school at

any place?’’ And her answer was: ‘' Mr. Kanzig, I retuse

to answer, specifically’ on the basis of my righis as guar-

anteed by the First Amendment to the Constitution.”’

What were her rights under the First Amendment!

The Majority avoids the subject entirely. Let us see what

the First Amendment says. Here is its precise wording:

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech or of the press; or the

Walson Dissenting Opinion (Pa, Supreme Ct.) 49a

right of the people peaceably to assemble, and to petition

the Governynent for a redress of grievances.”’

Now, What possible ‘connection can this Amendment

have with Mrs. Watson's refusal to-reply to a question about

attending a Communist: school? Absolutely nothing. So

far as relevancy is concerned, Mrs. Watson might just as

well have cited the Marquis of Queensberry rules,

The Majority makes no attempt to rationalize the pro-

priety of Mrs. Watson's invocation of the First Amendment.

It says in effect that it does not matter! It says in effect

that Mrs. Watson eould do what she pleased. She could

reply or not reply as she wished. In other words, the com-

mittee had.no right to question her at all. Is this law?, And

does this kind of a ruling breed respect for authority?

The Supreme Court of the United States’ said in the

case of Barneblatt vr. United States, 8360 U.S. 109, Te:

An educational institution is not a constitutional sanctuary

from inquiry into matters: that may otherwise be within the

constitutional legislative domain merely for the veason that

inquiry is made of Someone within its walls.’

In that ease the Supreme Court pointed out that the

right of the House Un-American Activities Committers to

-eonduet an inquiry into the subversive antecedents of the

feacher Barneblatt was ‘tunassailable.’" In that ease Barne-

blatt had been asked if he was enrrently a member of the

Communist Party and if he hadever been amember of that

organization. He refused to answer and did not plead the

Fitth Amendment. He was indicted for contempt of Con-

eress and was convicted. The Supreme Court affirmed the

conviction.

Despite this preeede nt: which is as clear as the sun

striking the Capitol dome at high noon, the Majority sees

nothing wrong about Mrs. Watson's defying a Congressional

committee questioning her on a matter within the indisput-.

able. purview of its investigatory powers. The Majority |

justifies Mrs. Watson's conduct by relating what she said

D0a Watson Dissenting Opinion (Pa. Supreme Ct.)

before the sehool board. The Majority relates: ‘Shy ex

plained that she had refused to answer questions at the

committee hearing because she felt that the committed was:

-condngting an inquisition with no legitimate legislative pur.

pose. that the members of the ‘committee were using the

hear ngs for purposes of personal political aggrandizement,

that the contmittee had no right to inquire into her associa

tions and beliefs, and that her freedoms of speech and asso

ciation guaranteed by the First Amendment would be vio

lated if she wert compelled ‘to answer the committee's

questions.”’ .

Whereas the Majority seesjustifiecation in this narrated

conduct, | see impertinence, effrontery, and insolence. Mrs.

Watson's statement was not an explanation of conduct, 1

was an attack on constituted authority. The Supreme Court

said, in appraising a similar situation in the Barneblatt case:

It goes without saying that the scope of the Committee ’s

authority was for the House, not a witness .to détermitic,

subject to the .ultimate reviewing responsibility of this

Court.” > ne

And then the Majority absolutely ignores the strony

language of the Supreme Court in that same Barneblatt case

where it seid: **That Congress has wide power to legislate

in the field of Communist activity in this Country and f

conduct appropricte investigations in aid thereof, is hardly

debatable... In the last analysis this power rests on the

right of self-preservation, ‘the ultimate ralue of any. so-

ety." Me fa . } é 3

The decision of this Court, if carried to-its logical con-

clusion, would deny the School Distriet of Philadelphia the

right of self-preservation, for how ean any school system

survive if it is required to hire and retain school teachers

who are disrespectful of the government in word and deed?

Now. Mrs. Watson was a Communist or she was not a

Communist. No one ean honestly deny the fairness and

veeuracy of that statement. Yet, although there was de-

finitely before the Congressional Committee sworn. testl-

Watson Dissenting Opinion (Pa. Supreme Ct.) * 51a

mony by a Mrs: Dorothy Funn that she had known Mrs.

Watson as a member of the Communist Party, Mrs. Watson

refused to deny this accusat.on. In other words, in the face

of a direct charge that she be longed to an organization com.

mitted to the destruction of our government by force amd

violence, an organization committed: to destruction of ‘the

Philadelphia schools, an organization commitfed to a de-

struction of faith in a Supreme Being, she refused to deny

the aceusation. , .

And her refusal to answer was not based on any theor y

that she feared eriminal prosecution. Her refusal to answer

was based.on the gargantuan presumption that she was

ereater than the Congressional Committee and that they did

not dare question her about her associations and metnber-

‘ships. Although our government is based upon the proposi-

tion that everybody is amenable to the processes of hoy,

Mrs. Watson insisted that Congress itself, representing the

law, had no right to question her. And this Court supports

her in this unmitigated demonstration of eonceit and. self:

assumed superiority. :

Professor Wigmore, in his monumental work on Evi-

dence, has said: ‘*For more than. three centuries it has now

been recognized as a fundamental maxim that the public

(in the words sanctioned . Lord Hardwieke) has a right

to every man’s evidence... This contribution is nat to

he regarded as a gratuity, or a courtesy, or an ilrequited

favor. It is a duty, not to be grndged or év: aded. Whoever

is impelled to evade or to resent it should retive from the

society of organized and civilized communitiys, and become

«hermit. He who will live by society must let society live

by him, when it requires to.

OF rom the point of view of society’s right to our testi-

mony, it is to be remembered that the demand comes, not

from any one person or set of persons, but from: the eom-

munity as a whole,—from justice as an institution, and

from law and order as indispensable elements of civilize “dl

_—"oE =

7

cident she had Witnessed, | INUSt repes

and incompetent to be a teacher of the

02a Watson Diss, Nting Opinion (Py. Supreme Ct.)

Hfe . ) .* . Wigmore on Evidence, Vol VIIT, See. 2199.

A person who Withesses, even involuntarily, the h

ing of an accident or the commission of

boenacd as a witness to testify as to what he knows of the

accident or crime, may not excuse himself from testif'ving

by qestioning the-motiyes of the court. pt. may not be

excused from testifving for any reason, except that of pos.

sible self-inerimination for crime, which M

cluded from her reasons ‘for not testif'ving,

appen-

rs. Watson ex.

As a member of society, 4 Witne

tell what he knows ‘for the protection and preservation of

that. society, and for Upholding the Concept OF justice, Tp

has that duty as mueh as passenger aboard a stricken ship

Is required to ail In seeking to keep her affo

the ship and. all the passengers,

sinking.

Mrs. Watson had noamére right to refuse to answer, the

questions put to her by the Congressional ( ‘ommmittee than

she would have had the right to refuse to testify to ‘an ac

| it that since she did

not invoke the Fifth Amendment, her refusal to answer

Was a demonstration of disobedience to constituted “uthority,

which disobedience, jy, itself, proved her utterly unworthy |

children of Philadel.

phia, who want Instruction on ood citizenship, by way of

example, from their teachers,

Mrs. Watson ‘s Complete

ss has the obligation to

at, sa us to save

including himself, from

destitution of sincerity. and

utter lack of oral ciyje responsibility: is irbefutanty estab.

lished in the following. She Was asked hy the chairman Of

the committee: ‘Did You take the lovalty oath?"

Defiantly she replied: +*] Will not answer that question.’

Now, why Wouldn't she answer that question?’ She cither

too the loyalty oath or she did not. Hep refus

Was sheer Insolence, tothing else,

would have subjected her to ch

al to answer

and, in a court of law,

arges of contempt Instanter,

Later on,‘she conferred with her Counse!]

and then said:

“Itisa matter of public record that

I took the loyalty oath."

aerime and is sub. -

© Watson Dissenting Opinion (Pa, Supreme Ct.) Aa

And Here comes the erueial feature of her INSiNceTity,

purposeful irresponsibility, and demonstrated lack of eom-

petence to be a school teacher or to hold any offiee requiring

caudor, consideration and reliability. The chairman asked

her: ‘Now, at the time you took the lovalty oath were you

atmember of the Communist Party?" Mrs. Watson replied;

“TL refuse to answer the question.on the basis of the First

Amendment.”’

Now, if Mrs. Watson was a member of the Communist

Party when she took the loyalty oath, she committed out.

right perjury. If she was not a member of the Communist

Party when she took the oath, her refusal to answer so

simple and so vital a question revealed her as being coin-

feniptuous to the ultimate. degree. Why shouldn't she an-

<wer the question if she was not‘a member of the Communist

Party when she took the Loyalty oath? The Majority

Opinion doesn't even mention this conclusive demonstration

of Mrs. Watson's brazenry, insolence, and reckless disregard

of the most elementary rule of good citizenship. A per-

formance of this kind on the part of a college stucent eould

‘abject him to expulsion. Why, in a school teacher, should

the an invitation to repeat this scandalous demeanor in the

resence of voung children?

The -chairman of the Congressional Committee, evi-

ently amazed at Mrs. Watson's haughty attitude and wish-

ng to make sure that she understood the question, directed

er for the second time to answer: and Mrs. Watson, ap-

arently fully resolved to show. her -defiinnee to the last

reath, again refused to answer, .

Could the School Board, learning of this shocking event,

ive Mrs. Watson a rating of ‘satisfactory’? as a school

acher?) Did Mrs. Watson not. hy thatvact of boundless

‘rogance and conceit, establish herself completely lacking

sense of civic moral responsibility, so Indispensable in

“© cquipment of a teacher?

Did all this not demonstrate her to be incompetent? Thee

ting of competency is not limited te technical qualifiea. —

mit

Sta Watson Dissenting Opiion (Pa. Sipreme Ct.)

tions. Character, moral stamina, wholesome ideals aye as

much a part of a teacher's equipment as knowledge of the

curriculum. This was made clear in our decision in the ease

of Horosko v. Mt. Pleasant Township School District, 335

Pal 369. 1 treated the matter of schoot Teacher competency

at length in my Dissenting Opinion in the Deacon-Intille-

Atkinson case, and, by reference, | incorporate that treat-

ment inthis present Dissenting Opinion.

Mrs. Watson's behavior was the worst possible example

to school children on how to beh; we, What sehool children

need more: than anything else is a demonstration of respect

for the law and courtesy toward one's elders and those in

responsible authority. They certainly did not get it from

Mrs, Watson. What Judge Atrssaxproxt so ably said in

another ease conld well apply to Mrs. Watson, namely:

“Whether plaintiff is a subversive or not, such wretehed

eonduet before a committee of the highest legislative branch

of our Republic, ean only foster in the impressionable chil-

dren under her tutel: age, a settled contempt and arPagance

for our country and its lawmakers.’’ (lutifle cv. Rowe r, SS

Pa. D. & C. 512, 514-5]5)

I think it is important to keep in mind, as counsel for

the School Board correctly said in his able: brief: ‘The

Supreme Court of the United States has not held that. re-

fusal to answer questions of a Congressional Committee ean

uéver be made tae basis for dismissal from state efnploy-

ment.”’

I think no one would seriously dispute that there are

mavy peopie who are well educated and technically trained,

but who are so lacking in moral sense and so self-centered

and overbearing in their conduct that they cannot possibly

be assigned to any position where they must de: il with other

people on the basis of understanding sympathy. There is no

position in civilization where the virtues of mutual respect,

ecivie obedience, good judgment, tranquil demeanor and

sympathetic understanding are so necessary as in a school

teacher's position. Ho® do we determine whether a person

Watson Disscnting Opinion (Pa, Supreme Ct) oda

vossesses the moral qualifications and sensitive intellectual

‘quipment to make him a good teacher? Obviously this

letermination can only result from observing that person in

lis relationship with other people. The school authorities

f Philadelphia’ found, from Mrs. Watson's performance

wfore a Committee of the United States Congress and her

ittitude before the School Board, that’she lacked an appre-

jation of civie responsibility, good judgment and an aware-

ress of the ideals of this country. T have stndicd the record

ind conclude that the Philadelphia Sehool Board did) not

(base its discretion in lismissing Mrs. Watson as being in-

competent to tedeh in the Philadelphia schools.

The Majority does not even discuss the question of

ibuse of diseretion. As amatterof fact, and I sav this with

espect, it is difficult to ascertain from the Majority Opinion

ust why the Majority coneludes that Mrs. Watson has

wroved herself a good teacher when the School Board, which’

s charged with the responsibility for that determination,

as found exactly to the contrary.

The Majority overlooks that the School Board informed.

irs. Watson in the notice of suspension that: ‘*The reason

or your suspension is that vou have shown a lack of fitness

o be a teacher in that vou have displayed conduct unbecom-

ng your professional status as a teacher.’”’

Her conduet was not only unbecoming het professional

tatus as a teacher, but in many ways it was indicative of a

ympathy with the methods used by Communists in the dis-

emination of their subversive propaganda. When she ap-.

seared before the Schoo! Board, she said that. investigators

f the House Un-American Activities Conmnittee had called

n her and she related some. of her conversations with them.

n that narrative she said: ‘<1 told them that T have a rule

or twenty-two and a half vears, that when a pupil walks to

ny desk he says T; that nothing would make me cooperate

vith the Committee.’’

Whether Mrs. Watson ever attended a Communist

chool for teachers I. have no,way of knowing, but she cer-

“ith

a Watson Dissenting Opinion (Pa, Supreme Ct.)

tainly conducted herself in the manner one could associate

with a person who had attended such a school. Here she is.

revealed, by her own words, that even in the presence of her

own pupils she wanted to stand as one who would not co

“operate with a Congressional committee. Was this not a

statement which showed that she wished her pupils to think

disrespectfully of Congress and its Committees? Should

further evidence be required of Mrs. Watson’s utter unfit.

ness as a school teacher? :

- Why did she refuse to testify before a Congression:!

Committee? Listen to her explanation: ‘* And it would have

been the lowest type of moral courage and morals for me

to have permitted myself to become a stool pigeon and an

informer because I had been informed on.’’ .

What had she been ‘tinformed on’’? The evidence in

the record is that a Mrs. Dorothy Funn had informed:on her

as being a member of the Communist Party. The investiga:

tors of the Committee told Mrs. Watson that there were

three persons who were ready to testify that they had known |

Mrs. Watson as a Communist. Were these statements

verifiable or not?: Mrs. Watson did not deny she had been

a member of the Communist Party. She was indignant

beeause she had been ‘informed on’’, and for that reason

she said she would not permit herself to become a ‘'stoo!

pigeon.’’ Is this the language of a respeetful and respected

school teacher?) Moreover, being a ‘‘stool pigeon’? imports

> an intimate personal knowledge of a criminal enterprise.

In Mrs. Watson’s concept of government, testifving

before a Congressional Committee makes one ai ‘stool

pigeon.”* No one was asking her to tell lies before the Com-

-mittee. Thus, if she told the truth, aceording to her own

statement, this would make her a stool pigeon. Did she

mean by this statement that she would thus be informing on

fellow-Communists?

Mrs. Watson's language of defianee was even stronger

than thus far quoted. She said: ‘*When I walked into that

room | knew that no power, no power on God’s earth could

Watson Dissenting Opinion (Pa. Npre rite (‘t.) re ae

make ane become a part of something that I thought was

wrong,”’ oan

She thought it was so wrong td testify before a Con-

rressional committee that ‘tno power on God's earth’? could

compel-her fo do it. And yet, every day hundreds of exeed-

ent citizens appear before House and Senate committees to”

estify on facts, plans, statistics, observations——allk to: help

“ongress in formulating legislation for the welfare of the’

‘ountry. Our Government simply could not operate without

he information which Congressional committees obtain from

vithesses: experts, technical consultants, educators, and so

m. .

But Mrs. Watson regarded testifying before a com-

nittee, pequired by an Aet of Congress to obtain informiat-

ion peeuliarly within her knowledge and the obtaining of

vhich would help preserve) American freedoms, as some-

hinge disgraceful. In speaking of her unbridled defiance of

he Commmittee she exclaimed :** Democracy is running down

he drain.”* !!!

And this is the kind of person that this Court practically,

wstows an accolade upon by officially approving -her arro-

rant and disrespectful behavior before a “Congressional

‘ommittee and her superiors, the School Board éf Phila-

lelphia. | :

Tam firmly convineed that a reflective reading of the

ecord in this ease will prove conclusively that Mrs. Watson

acks the stability of character, the respect of authority, the

learness of judgment, and- Nie attachment to ideals of

\merican citizenship, to be a good teacher in the American

chools. On the basis of her performances before the Con-

ressional Committee and the School Board, the School

Soard would have been grossly derelict in its responsibilities

o the people of Philadelphia if it had not dismissed her.

fere is a school teacher who, although supposed to be the:

ery personifieation of American ideals, defies Congress, in-

ults the School Board, berates democracy, tannts officials

o8a - Watson Dissenting Opinion (Pa. Supreme Ct.)

and workers in American government, refuses to give testi- D

mony that would help this government to fight its mortal

enemy in a war of survival, suggests to her pupils that it is

desirable not to cooperate with a branch of the United States Ro

Government—does all this in an arrogant, contemptuous, de- v

risive, insolent, rude, scorning manner--and then, SIX years if

later, she is restored to the pgsition she has tarnished by os

her conduct. By that action Congress is rebuffed, the Schoo! ‘val

Board is condemned, the Superintendent of Schools is hu- ie

miliated, and, in ‘addition, the person responsible for tliis eS

utterly incredulous situation, may make claim for wages tin

unpaid during the time of her swspension. This is indew! a

ineredulous and baffling to the law, as well as to the tax- . are

payers. it]

I am in total accord with my brother Eacen who says: ;

‘*T emphatically dissent !’’. the

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Watson Dissenting Opinion (Pa. Supreme Ct.) 59a

ISSENTING OPINION BY MR. JUSTICE EAGEN:

I emphatically dissent!

I agree with the legal correctness of Slochower +. The

rd of Higher Education of the City of New York, 350

S. 549 (1956), but the facts herein are not comparable.

1 school board, because of a provision in a eity charter,

‘e compelled to summarily dismiss any employee, who

used to testify or answer before a congressional commit-

and was consequently thereby denied the right to exer-

‘its sound discretion with respect to the employee ’s con-

1ed employment even though it was determined he or she

: completely competent, of course that would he wreng

| legally unjustified. That was the Slochower case, but

< not the ease of Goldie Watson.

An examination of the record (the notice of suspension ;

statement of charges; the testimony before the members

the sub-committee of the House Un-American Activitics

nmittee; and, the testimony before the Board of Fduca-

1) elearly discloses that Mrs. Watson was not dismissed

ause of her failure to answer questions bearing on her

alty, but rather was it beeause of. what she did say and

manner in which she said it that jastifiably Jed to the

clusion bythe Superintendent, of Schools that her

meanor bordered on insolence and disclosed incompe-

cy in unmistakable terms. This is not a ease of a schoo]

cher suffering dismissal or being declared incompetent

rely because she saw fit to exercise her constitutional

Vileges of refusing to answer. No, this is a situation

erein her public: employer, after a. full hearing, deter-

ned that she was unfit to teach in. the community beeause

clearly evidenced a settled contempt, a blatant disrespect

Jan arrogant disregard for a duly constituted eongres-

nal committee and the important. functions if sought to

‘form. ; ; :

Let us see how these unfortunate traits of attitude are

nifested by the minutes of the sub-committee. She was

60a Watson Dissenting Opinion (Pa. Supreme Ct.)

asked ten questions. She gave responsive answers to three:

Her name, address, and a brief résumé of her schooling and

edaeational background. . When asked if she had ever been

a member of the Communist Party,. she replied: ‘*Mr.

Kunzig, I ask: your first questions to be completely identified

before this committee. I will not answer any other question

I am asked about membership in organizations, associations,

socicties, people I have met with, or anything else.” When

advised by the sub-committee of her rights under the Fifth

Amendment, she declined to invoke it. In reply té the same

question asked again, she said: ‘*I said I would not answer

the question, and that it is a violation of my Constitutional

rights for you to bring me here and attempt to compel me to

answer questions about associations, memberships, con-

‘ferences, or speeches.’’ (Note: ‘‘eonferences’”? and

‘*speeches,’’ both volunteered). Not having availed herself

of the privilege against self-incrimination, she was directed

’ to answer and she countered: ‘I refuse to answer on the

basis of my first statement.’’ Next question-—‘‘ Mr. Kunzig:

Did you ever attend a Communist school or a school ‘for

instruction of Communist teachers in New York State? Mrs.

Watson: Mr. Kunzig, I have intimated that Tam not qoina

fo answer your questions. "When directed to an-

swer, she said: ‘‘T will not answer”? . . 2 1 refuse to an-

swer,’’' These questions and answers are, in ‘the minutes,

interspersed with repeated references ‘to the fact that the

witness was, during it all, constantly consulting with her

counsel. Finally, she ‘‘took the First.””) ‘Mr. Kunzig:

Have you ever aftended any Communist instruction school

at any place? Mrs. Watson: Mr. Kunzig, I refuse to an-..

,swer, specifically on the basis of my rights as guarantecd

"by the First Amendment:to the Constitution. . . . I refuse

to answer on-the basis of the First Amendment.’’ Mr.

Kunzig then asked that ‘‘the record show that in voice and

tone the witness has emphasized the use of the words ‘First

Amendment.’ ”’

1. Emphasis throughout supplied.

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Watson Dissenting Opinion (Pa. Supreme (‘t.) Gla

Later in the proeeedings she is thusly advised by a eom-

ee member: ** Mr. Scherer: Of course, 4 think it is fair

‘ll the witness—evidently, she already has been told by

counsel—that the manner in awhich you answered the

tions this morning clearly indicates that you are’ in

empt of the Congress”? After consulting with counsel,

replied: *T have been advised by my counsel of the risks

‘the dangers that T run by taking this position. [still

the risks and the dangers beeause this position is very

od to me.’ Following which, when asked if she had

fn the loyalty eath, she said: ‘tT will not answer that

stion.’?* (She later stated that it was a matier of public

wd that she had taken it.) ry |

That's Goldie Watson ‘as she was .before: the <hcom,

teo in Washington. But she returns to the scene in per-

in answer. to the charges of her Superintenden’ at the

rd hearing. Now she explains, at Tefigth, the reason-

{ prompted her so to act. Now especially Goes she

ror traits of attitude toward the sub-committee that lead

leviatingly to the conclusion that she ix, as charged, unfit

each in the Commonwealth's public school system. “This

he: ‘Since the inception of the Committee in [43s under

Chairmanship of Martin Dies, ] had been of the opinion

t this wasn’t a legislative committee econterned with in-

tigating and then presenting laws; rather that it was an

uisitorial committee and that it was violating the First

rendment to the Constitution.’* Referring to visits mitede

her before the hearing by committee investigators aie

ifieally to requests by the latter to identify other people

communists, she said: “IT told them that [have a rule for

onty-two and a half years, that when a pupil walks to my

‘k he says I; that nothing woul] make me cooperate. with —

Committee. I gate them a breakdown of what T thought

out the Committee and its violation of all Americas’

hts and its dangers particularly to Negro Americans. and

it under no circumstances would L cooperate with them”

e then says that she ‘‘tried to convince’? Mr. Fuoss (a

62a Watson fia Opinion (Pa. Supreme Ct.)

committee Wolken) ‘‘of what real [Meee ent ie was.

Never has this Committee gone into any community and

talked about un-Americanism as it affected Negroes. And

therefore to me it wasn’t a committee really concerned with

un-Americanism; that it was a committee that was an in-

quisition; and that the individual members of the Committee

used the Committee as a political football to gain glory anil

prestige in America . . . All my life I have dedicated

myself to Negro children. I have tried to convinee them

that this was a country in which we could have ultimate rev!

freedom. . . . And it would have been the lowest type of

moral courage and morals for me to have permitted myself

to become a stool-pigeon and an informer because Thad

heen informed on. I wouldn’t do it. I could not have re.

turned to my: classroom under those cireumstances. So

that when [ appeared before the Committee that was my

other reason. ... . When I walked into that room I knew

that no power, no power on God’s earth could make me

become a part of -something that I thought was wrong:

could make me show my boys and girls that I held the Con-

stitution in contempt. Because for me to have participate:

in that inquisitorial investigation, to me, would have been

showing that I did not believe in the Constitution. . . . 1

Anvoked the First Amendment, but I recognize very clearly

the position of those people who invoked the Fifth.

And I say to you, gentlemen, that if the First Amendment

no longer means anything, if my right to test this Amend-

ment is a crime, we have reached a terrible state in. America.

Democracy is running down the drain. And negro Americans

will be able to achieve nothing in such an atmosphere.”’

This speech, which the board had before it) when it.

deliberated upon Mrs. Watson’s fate as a school teacher, is

‘too much’! At the very least, it is cwongh, in my estima-

tion, to sustain a finding such as was arrived at. The Dis.

trict Superintendent, the Board, the Pennsylvania Superin-

tendent of Public Instruedion, the lower court—all are

«

Watson Dissenting Opinion (Pa, Supreme Ct.) boa

agreed that Mrs. Watson is ‘‘ineompetent’? w ithin the mean-

ing of Seetion 1122 of the Publie School Code. But the

Majority of my colleagues would return her to her job by

ordering her reinstatement.

I have stated that the charges auvaiuat her were based

on her behavior, her conduct before the committee and that

the latter evidenced a contumacious attitude towards its

purposes and processes. Her notice ot suspension reads in

part as follows: *t. . . The reason for your suspe nsion is

that you have shown a ick of fitness to be a teacher in that

you have displayed conduct wnbecoming your professional

status as ateaecher.?’?) The Statement of Charges declared

that: **. .. Her conduct before the sub-committee of the

House Committee on Un-American activities is incompatible

with her status as a professiorial employe in the Philadelphia

publie schools. . . . She showed by her conduct a lack of

professional fitness to be a teacher. Her conduct makes

her incompetent to continue in the service of the Philadel-

phia public schools, . . 7? Upon cross- examination of the

Superintendent of Schools Ww who suspended her and preferred

the charges,” Mrs. Watson’s attorney unsuccessfully at-

tempted to show that her refusal to answer was: the sole

cause of her (ismissal: ‘*BY MR. DORFMAN : Q. Dr. Hoyer,

von testified that the only real reason you suspended her was

beeause she refused to answer these questions on February

17; is that correct? A. On the basis of her appearance

before the Committee and her action there, yes. 2. 2 MR

DORFMAN + Q. I just want to narrow it down, This was the

only reason;-‘is that correct? A. Her appearance before

that Committee.and her reaction to the Committee w as the

basis for the charges.’? In answer to an earlier question

by Mr. Soken who ‘asked: ‘'Q. Doctor, are there any ‘other

respects in which you consider Mrs. Watson’s conduct be-

fore the Committee as constituting unprofessional con-

duet?”’, the Superintendent replied: ‘*W ell, 1 considered

Mrs. Watson’s nenavion before the Committee of Conaress

to border on insolence. And that also entered into my ¢con-

—_—

64a Watson Dissenting Opinion (Pa. Supreme Ct.)

sideration at the time this decision of mine was made."* The

basis of the charges, then, encompasses’ far more than a

‘school teacher's legitimate exercise of a constitutional privi-

lege. She has told the world and the children entrusted. to

her care what she thought of this sub-committee’ and. has

assigned her reasons, which | consider palpably weak, for

her refusal to testify. Are those who, under subpoena, gu

to Washington. to testify before duly constituted congres.

sional bodies bf who, instead, put on a show of contempt for

Congress, are they thereby to: beeome ‘untouchables**?

Due Process? She had it! She réceived notice of SUSPen-

sion. She was afforded a stutement of charges. She was

given time to prepare for a public hearing. She appeared

at that hearing in person, and through counsel. Her attorney.

exercised the right-of cross-examination. She testified,

briefly, on direct. She then made a prolonged, uninter-

rupted statement that covers seven pages in the record be-

fore us. She appealed to ‘the Pennsylvania Superintendent

of Public Instruction. She appealed: from there to the

common pleas Court. She was anything but railroaded to

her destination of discharge by the board. Her rights were

at all times respected. , :

With.the reeord as my guide, I vehemently regret the.

reinstatement that is promised. é ;

In conclusion, I would but reiterate that I consider

Slochower v. The Board of Higher Education of The City

of New York, supra, to‘have 1) been correctly decided but,

2) absolutely no pertinence, relevance or control vis-a-vis the

instant case. It is distinguishable on many very important

grounds: See Nelson and Globe v. County of Los Angeles,

LUaR. (1960). The City Charter there provided for

automatic, summary dismissal. By it a discharge from en

ployment, the conditions existing, was inevitable, made

'. mandatory and, therefore, lacking in an allowance of dis-

¢retion to the proper supervisory officials and in adequate

protective procedures. Again that is not this ease.

Mr. Justice Bent joins in this dissenting opinion.